<PAGE> 1
As filed with the Securities and Exchange Commission on January 31, 1996
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. HOME CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 West Loop South
Houston, TX 77027
(713) 877-2311
(Address, including zip code, and
telephone number, including area
code, of registrant's principal
executive offices)
ROBERT J. STRUDLER
Chairman and Co-Chief Executive Officer
U.S. Home Corporation
1800 West Loop South
Houston, TX 77027
(713) 877-2311
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Stephen C. Koval, Esq.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered in connection with
dividend or interest reinvestment plans, check the following box. [X]
<PAGE> 2
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement from the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
Calculation of Registration Fee
<TABLE>
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered offering price per aggregate offering registration fee
registered unit price
- ----------------------- --------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Senior, Senior $100,000,000 (1) 100% (1) $100,000,000 (1) $34,483
Subordinated and/or
Subordinated Debt
Securities, Various
Series
</TABLE>
(1) Estimated solely for purposes of determining the registration fee.
If any such Debt Securities are issued at an original issue
discount, then the amount to be registered shall be in such
greater principal amount as shall result in an aggregate initial
offering price of up to $100,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSURANT TO SAID SECTION 8 (a), MAY DETERMINE.
<PAGE> 3
CROSS REFERENCE SHEET
Location or Heading
Item Number and Captions in Prospectus
------------------------ ------------------------
1. Forepart of the Registration
Statement and Outside Front Facing Page;
Cover Page of Prospectus. Outside Front Cover Page
2. Inside Front and Outside Back Inside Front and
Cover Pages of Prospectus. Outside Back Cover Pages
3. Summary Information, Risk
Factors and Ratio of Earnings The Company; Ratio of
to Fixed Charges. Earnings to Fixed Charges
4. Use of Proceeds. Use of Proceeds
5. Determination of Offering Price. Not Applicable
6. Dilution. Not Applicable
7. Selling Security Holders. Not Applicable
8. Plan of Distribution. Plan of Distribution
9. Description of Securities to be Description of Debt
Registered. Securities
10. Interests of Named Experts and Not Applicable
Counsel.
11. Material Changes. Not Applicable
12. Incorporation of Certain Information Incorporation of Certain
by Reference. Information by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities. Not Applicable
<PAGE> 4
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER
TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE
OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES
LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 31, 1996
$100,000,000
U.S. Home Corporation
Debt Securities
----------
U.S. Home Corporation ("U. S. Home" or the "Company") may
offer from time to time, in one or more series, its debt securities,
consisting of bonds, debentures, notes and/or other unsecured evidences
of indebtedness. The debt securities may consist of the Company's
unsecured senior debt securities (the "Senior Debt Securities"),
unsecured senior subordinated debt securities (the "Senior Subordinated
Debt Securities") or unsecured subordinated debt securities (the
"Subordinated Debt Securities," and together with the Senior Debt
Securities and the Senior Subordinated Debt Securities, the "Debt
Securities"). The Debt Securities will have a maximum aggregate principal
amount of $100,000,000 and will be offered on terms to be determined at
the time of sale.
The specific terms of the Debt Securities in respect of
which this Prospectus is being delivered will be set forth in the
supplement accompanying this Prospectus (the "Prospectus Supplement") and
will include, where applicable, the specific title, the aggregate principal
amount, the currency, authorized denominations, the maturity, the rate (or
method of calculation) and time of payment of interest, if any, any
redemption or sinking fund provisions, any additional covenants or events
of default, the initial public offering price and the other material terms
of the Debt Securities. The Prospectus Supplement will also disclose
whether the Debt Securities will be listed on a national securities
exchange and if they are not to be listed, the possible effects thereof on
their marketability.
Debt Securities may be offered by the Company directly to
one or more purchasers, through agents designated from time to time by the
Company or to or through underwriters and/or dealers. If any agent of the
Company or any underwriter or dealer is involved in the sale of the Debt
Securities, the name of such agent, underwriter or dealer and any
applicable purchase price, fee, commission or discount arrangement between
or among them will be set forth, or will be calculable from the information
set forth, in the applicable Prospectus Supplement. See "Plan of
Distribution." No Debt Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of such series of Debt Securities.
----------
<PAGE> 5
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK
HAS NOT PASSED ON OR ENDORSED THE MERITS
OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
----------
The date of this Prospectus is , 199
<PAGE> 6
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the Debt
Securities offered hereby. This Prospectus, which constitutes part of the
Registration Statement, does not contain all of the information set forth
in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Debt Securities, reference
is made to the Registration Statement.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy and information statements and
other information with the Commission. The Registration Statement, as well
as such reports, proxy and information statements and other information
filed by the Company, may be inspected and copied (at prescribed rates) at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
regional offices located at Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th
Floor, New York, New York 10048. In addition, such reports, proxy and
information statements and other information concerning the Company may
also be inspected at the offices of the New York Stock Exchange, at 20
Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission
(File No. 1-5899) pursuant to the Exchange Act are incorporated herein by
reference:
(i) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994;
(ii) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1995;
(iii) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1995; and
(iv) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1995.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Debt
Securities offered hereby shall be deemed incorporated by reference into
this Prospectus and to be a part hereof from the date such documents are
filed.
<PAGE> 7
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein will be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in the applicable Prospectus Supplement or in
any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded will not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon the written or oral request of
such person, a copy of each document incorporated herein by reference.
Requests for such copies should be directed to Kelly F. Somoza, Vice
President, U.S. Home Corporation, 1800 West Loop South, Houston, Texas
77027, (713) 877-2311.
THE COMPANY
U.S. Home, organized in 1954 and incorporated in the State of
Delaware in 1959, is one of the largest single-family homebuilders in
the United States based on homes delivered. The Company currently builds
and sells homes in more than 200 new home communities in 32 metropolitan
areas in 12 states. Since its formation, the Company has delivered more
than 259,000 homes. The Company conducts substantially all of its
homebuilding business through U.S. Home, the parent company.
The Company offers a wide variety of moderately-priced homes that
are designed to appeal to the affordable, move-up and retirement and
active-adult/second home buyers. In each of its markets, the Company's
primary strategy is to build quality homes, utilizing its Zero Defect
Program, which the Company believes offers prospective home buyers a high
level of new home value. The Company believes that many home purchasers
compare homes on the basis of location, perceived quality and dollars of
purchase price per square foot of living area. As a result, the Company
attempts to purchase land and lots in popular growth corridors, maintain
high quality standards and design homes to maximize living space.
In addition to building and selling single-family homes, the
Company provides mortgage banking services to its customers. The Company
originates, processes and sells mortgages to third-party investors. The
Company does not retain or service the mortgages that it originates but,
rather, sells the mortgages and related servicing rights to investors.
The principal executive offices of the Company are located at 1800
West Loop South, Houston, Texas 77027 (telephone: (713) 877-2311).
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the Company intends to use the net proceeds from the sale of
the Debt Securities for general corporate purposes.
<PAGE> 8
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings
to fixed charges for the Company for the periods indicated:
Nine Months Fiscal Year
Ended Ended
September 30, December 31,
------------- ---------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to
fixed charges
(unaudited) (1) 3.02 3.02 2.51 2.78 3.26 -- --
- ----------------------------
(1) The ratio of earnings to fixed charges is calculated by dividing
earnings by fixed charges. For this purpose, "earnings" means
income (loss) before reorganization items plus (a) provision
(benefit) for income taxes, and (b) fixed charges (including the
proportionate share thereof of unconsolidated affiliates). "Fixed
charges" means total interest, whether capitalized or expensed,
and the portion of rent expense representative of interest costs
(including the proportionate share thereof of unconsolidated
affiliates), plus (i) debt-related fees and (ii) amortization of
deferred financing costs. Earnings were insufficient to cover
fixed charges for the years ended December 31, 1991 and 1990 by
approximately $2 million and $80 million, respectively.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute direct, unsecured obligations
of the Company, unless otherwise provided in the applicable Prospectus
Supplement. Senior Debt Securities may be issued from time to time in
series under an indenture (the "Senior Indenture") between the Company and
IBJ Schroder Bank & Trust Company, as a trustee (the "Trustee"). See "--
Concerning the Trustee." The Senior Indenture has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part. Senior
Subordinated Debt Securities may be issued from time to time in series
under an indenture (the "Senior Subordinated Indenture") between the
Company and the Trustee. The Senior Subordinated Indenture has been filed
as an exhibit to the Registration Statement of which this Prospectus is a
part. Subordinated Debt Securities may be issued from time to time in
series under an indenture (the "Subordinated Indenture") between the
Company and the Trustee. The Subordinated Indenture has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The Senior Indenture, the Senior Subordinated Indenture and the
Subordinated Indenture are sometimes referred to individually as the
"Indenture" and collectively as the "Indentures." The Indentures will be
subject to and governed by the Trust Indenture Act of 1939, as amended (the
"TIA"). As used under this caption, unless the context otherwise requires
"Offered Debt Securities" shall mean the Debt Securities offered by this
Prospectus and the accompanying Prospectus Supplement.
<PAGE> 9
The following summaries of certain provisions of the Indentures do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all of the provisions of the Indentures,
including the definitions therein of certain capitalized terms used in this
Prospectus. The following sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate.
Further terms of the Offered Debt Securities will be described in the
Prospectus Supplement. Except (i) with respect to the covenants described
herein for Senior Debt Securities, (ii) with respect to the provisions
relating to subordination and (iii) to the extent set forth in a Prospectus
Supplement with respect to a particular series of Debt Securities, the
Indentures are substantially identical. See "-- Senior Indenture Covenants"
and "-- Status of Debt Securities."
General
Each Indenture will provide for the issuance of Debt Securities in
one or more series. The Debt Securities will be unsecured senior, senior
subordinated or subordinated obligations of the Company, as set forth in
the accompanying Prospectus Supplement. Except as may be set forth in the
accompanying Prospectus Supplement and as described herein relating to the
Senior Indenture, the Indentures will not restrict the business or
operations of the Company or its subsidiaries, limit their indebtedness or
prohibit any liens, charges or other encumbrances on any properties or
other assets they may have from time to time. See "-- Senior Indenture
Covenants."
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Offered Debt Securities
in respect of which this Prospectus is being delivered, if applicable: (i)
the title of the Offered Debt Securities; (ii) whether the Offered Debt
Securities are Senior Debt Securities, Senior Subordinated Debt Securities
or Subordinated Debt Securities; (iii) the aggregate principal amount of
the Offered Debt Securities and any limit on such aggregate principal
amount; (iv) the person to whom interest on an Offered Debt Security will
be payable, if other than the person in whose name the Offered Debt
Security is registered on the record date for the payment of such interest;
(v) the date or dates, or method by which such date or dates will be
determined, on which the principal of the Offered Debt Securities will be
payable; (vi) the rate or rates at which the Offered Debt Securities will
bear interest, if any, or the method by which such rate or rates will be
determined; (vii) the date or dates from which interest, if any, will
accrue, or the method by which such date or dates will be determined, the
interest payment dates on which any such interest will be payable and the
record date, if any, for the interest payable on any Offered Debt Security
on any interest payment date, or the method by which such date or dates
will be determined, and the basis upon which interest will be calculated if
other than on the basis of actual days elapsed over a 365 or 366-day year;
(viii) the place or places, if any, other than or in addition to New York,
New York, where the principal of and interest on Offered Debt Securities
will be payable, any Offered Debt Securities may be surrendered for
registration of transfer, any Offered Debt Securities may be surrendered
for exchange and the place or places where notices or demands to or upon
<PAGE> 10
the Company in respect of the Offered Debt Securities and the applicable
Indenture may be served; (ix) the period or periods within, the price or
prices at and the terms and conditions upon, which the Offered Debt
Securities may be redeemed or purchased, in whole or in part, at the option
of the Company; (x) the obligation, if any, of the Company to redeem or
repurchase the Offered Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and the period or
periods within which, the prices at which and the terms and conditions upon
which Offered Debt Securities will be redeemed or purchased, in whole or in
part, pursuant to such obligation; (xi) if other than denominations of
$1,000 and any integral multiple thereof, the denomination in which the
Offered Debt Securities will be issuable; (xii) the currency, currencies or
currency units in which payment of the principal of and interest on any
Offered Debt Securities will be payable if other than the currency of the
United States and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of
"Outstanding" in the applicable Indenture; (xiii) if the principal of or
interest on any Offered Debt Securities is to be payable, at the election
of the Company or a holder thereof, in one or more currencies or currency
units other than that or those in which the Offered Debt Securities are
stated to be payable, the currency, currencies or currency units in which
payment of the principal of and interest on Offered Debt Securities as to
which such election is made will be payable, and the periods within which
and the terms and conditions upon which such election is to be made; (xiv)
if the amount of principal of or interest on any Offered Debt Securities
may be determined with reference to an index, the manner in which such
amounts will be determined; (xv) if other than the principal amount of the
Offered Debt Securities, the portion of the principal amount thereof which
will be payable upon declaration of acceleration of the maturity thereof;
(xvi) if the Offered Debt Securities will be issuable in whole or in part
in the form of one or more Global Securities and, in such case, the
Depository or Depositories for such Global Security or Global Securities
and any circumstances other than those set forth herein in which any such
Global Security may be transferred to, and registered and exchanged for
Offered Debt Securities registered in the name of, a person other than the
Depository for such Global Security or a nominee thereof and in which any
such transfer may be registered; (xvii) if other than the Trustee, the
identity of each paying agent and registrar for the Offered Debt
Securities; (xviii) any Events of Default (as defined) with respect to the
Offered Debt Securities, if not otherwise set forth under the caption
"-- Events of Default"; (xix) any material covenants with respect to the
Offered Debt Securities, if not otherwise set forth herein or if different
from those set forth herein; (xx) the applicability of the provisions
described under the caption "-- Discharge of the Indenture"; and (xxi) any
other material terms of the Offered Debt Securities.
Debt Securities may be issued at a discount from their principal
amount. Federal income tax considerations and other special considerations
applicable to any such Offered Debt Securities will be described in the
applicable Prospectus Supplement.
<PAGE> 11
If the purchase price of any of the Offered Debt Securities is
denominated in a foreign currency or currencies or a foreign currency unit
or units or if the principal of, or interest, if any, on, any series of
Debt Securities is payable in a foreign currency or currencies or a foreign
currency unit or units, the restrictions, elections, general tax
considerations, specific terms and other information with respect to such
Offered Debt Securities and such foreign currency or currencies or foreign
currency unit or units will be set forth in the applicable Prospectus
Supplement.
Global Securities
Unless otherwise provided in the applicable Prospectus Supplement,
the Debt Securities will be issued in the form of one or more global
securities (each a "Global Security") registered in the name of a nominee
of The Depository Trust Company (the "Depository"). The identity of the
nominee appointed by the Depository will be set forth in the applicable
Prospectus Supplement. The Global Security will be issued in a denomination
or aggregate denominations equal to the portion of the aggregate principal
amount of the outstanding Debt Securities of the series represented by such
Global Security. Except as described herein or in the applicable Prospectus
Supplement, Debt Securities will not be issued in definitive form.
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a Global
Security will be described in the applicable Prospectus Supplement. The
Company expects that the following provisions will apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depository or its
nominee will credit the accounts of persons holding through it with the
respective principal amounts of the Debt Securities represented by such
Global Security. Such accounts will be designated by the underwriter, if
any, with respect to Debt Securities placed by the underwriter for the
Company. Ownership of beneficial interests in a Global Security will be
limited to persons that have accounts with the Depository ("participants")
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in a Global Security will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by the Depository for such Global Security. Ownership of
beneficial interests in such Global Security by persons that hold through
participants will be shown on, and the transfer of that ownership interest
through such participant will be effected only through, records maintained
by such participant. The foregoing may impair the ability to transfer
beneficial interests in a Global Security.
<PAGE> 12
Except as provided in the applicable Prospectus Supplement,
payment of principal and interest, if any, on Debt Securities represented
by any such Global Security will be made to the Depository or its nominee,
as the case may be, as the sole registered holder of the Debt Securities
represented thereby for all purposes under the applicable Indenture. None
of the Company, the Trustee, any agent of the Company or the Trustee or the
underwriter, if any, will have any responsibility or liability for any
aspect of the Depository's records relating to or payments made an account
of beneficial ownership interests in a Global Security representing any
Debt Securities or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
The Company has been advised by the Depository that, upon receipt
of any payment of principal or interest on any Global Security, the
Depository will immediately credit, on its book-entry registration and
transfer system, the accounts of participants with payments in amounts
proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depository.
Payments by participants to owners of beneficial interests in a Global
Security held through such participants will be governed by standing
instructions and customary practices as is now the case with securities
held for customer accounts registered in "street name," and will be the
sole responsibility of such participants.
Except as described in the applicable Prospectus Supplement, a
Global Security may not be transferred except as a whole by the Depository
for such Global Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor of such Depository or
a nominee of such successor. If the Depository is at any time unwilling or
unable to continue as depository and a successor depository is not
appointed by the Company or the Depository within 90 days, the Company will
issue Debt Securities in definitive form in exchange for the Global
Security. In addition, the Company or the Depository may at any time and in
its sole discretion determine not to have the Debt Securities represented
by the Global Security and, in such event, the Company will issue Debt
Securities in definitive form in exchange for the Global Security. In
either instance, an owner of a beneficial interest in the Global Security
will be entitled to have Debt Securities equal in principal amount to such
beneficial interest registered in its name and will be entitled to physical
delivery of such Debt Securities in definitive form. Except as described in
the applicable Prospectus Supplement, Debt Securities so issued in
definitive form will be issued in denominations of $1,000 and integral
multiples thereof and will be issued in registered form only, without
coupons. Except as described in the applicable Prospectus Supplement,
principal and interest, if any, on the Debt Securities will be payable, and
the Debt Securities may be presented for registration of transfer or
exchange, at the offices of the Trustee.
<PAGE> 13
So long as the Depository for a Global Security, or its nominees,
is the registered owner of such Global Security, such Depository or such
nominee, as the case may be, will be considered the sole registered holder
of the Debt Securities represented by such Global Security for all purposes
of receiving payment on the Debt Securities, receiving notices and for all
other purposes under the Indenture and the Debt Securities. Beneficial
interests in Debt Securities will be evidenced only by, and transfers
thereof will be effected only through, records maintained by the Depository
and its participants. Except as provided above, owners of beneficial
interests in a Global Security will not be entitled to and will not be
considered the registered holders thereof for any purposes under the
Indenture. Accordingly, any such person owning a beneficial interest in
such a Global Security must rely on the procedures of the Depository, and,
if any such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any
rights of a registered holder under the Indenture. The Indenture provides
that the Depository may grant proxies and otherwise authorize participants
to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a register holder is entitled to give
or take under the Indenture. The Company understands that under existing
industry practices, in the event that the Company requests any action of
registered holders or that an owner of a beneficial interest in such a
Global Security desires to give or take any action which a registered
holder is entitled to give or take under the Indenture, the Depository
would authorize the participants holding the relevant beneficial interest
to give or take such action and such participants would authorize
beneficial owners owning through such participants to give or take such
action or would otherwise act upon the instructions of beneficial owners
owning through them.
The Depository has advised the Company that the Depository is a
limited-purpose trust company organized under the laws of the State of New
York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered under the Exchange Act. The Depository was created to
hold the securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of
securities certificates. The Depository's participants include securities
brokers and dealers, banks, trust companies, clearing corporations and
certain other organizations, some of whom (and/or their representatives)
own the Depository. Access to the Depository's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies,
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly.
<PAGE> 14
Status of Debt Securities
The Senior Debt Securities will be unsecured and unsubordinated
obligations of the Company and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. All series of
Senior Debt Securities of the Company issued under the Senior Indenture
will rank on parity in right of payment with each other, with indebtedness
under the Company's principal credit facility and with the Company's
$200,000,000 principal amount of 9-3/4% senior notes due 2003, previously
issued under an Indenture, dated as of June 21, 1993, between the Company
and IBJ Schroder Bank & Trust Company, as trustee (the "Senior Notes"). The
Senior Debt Securities offered hereby will be senior in right of payment to
the Company's $80,000,000 principal amount of 4-7/8% convertible
subordinated debentures due 2005, previously issued under an Indenture,
dated as of November 3, 1993, between the Company and Marine Midland
Bank, N.A., as trustee (the "Debentures").
The Senior Subordinated Debt Securities will be unsecured
obligations of the Company and will be subordinate and junior in right of
payment, to the extent and in the manner to be set forth in the Senior
Subordinated Indenture to the prior payment in full in cash (or cash
equivalents) of amounts then due on "Senior Indebtedness" of the Company.
Except to the extent set forth in the applicable Prospectus Supplement, the
Senior Subordinated Indenture will define "Senior Indebtedness" of the
Company as the principal of (premium, if any), and interest on (including,
without limitation, interest accruing subsequent to the filing of a
petition under applicable Bankruptcy Law (as defined in the applicable
Indenture) or the appointment of a Custodian (as defined in the applicable
Indenture)), (i) any and all indebtedness and obligations of the Company
(including indebtedness of others guaranteed by the Company), whether or
not contingent and whether or not outstanding on the Issue Date or thereafter
created, incurred or assumed (including, without limitation, all charges,
fees, expenses and other amounts incurred by or owing to holders of such
indebtedness), which (a) is for money borrowed, (b) is evidenced by any
bond, note, debenture or similar instrument, (c) represents the unpaid
balance on the purchase price of any property, business or asset of any
kind, (d) is an obligation of the Company as lessee under any and all
leases of property, equipment or other assets required to be capitalized
on the balance sheet of the lessee under generally accepted accounting
principles, (e) is a reimbursement obligation of the Company with respect to
letters of credit, (f) is an obligation of the Company with respect to an
interest swap obligation or foreign exchange agreement or (g) is an obligation
of another secured by a lien to which any of the properties or assets
(including, without limitation, leasehold interests and any other
tangible or intangible property rights) of the Company is subject, whether
or not the obligations secured thereby shall have been assumed by the
Company or will otherwise be the Company's legal liability and (ii) any
deferrals, amendments, renewals, extensions, modifications and refundings of
any indebtedness or obligations of the types referred to in clause (i)
of this paragraph; provided that Senior Indebtedness will not include
(A) the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, (B) the Debentures, (C) any indebtedness or obligation of
the Company (or the instrument creating or evidencing it) which expressly
<PAGE> 15
provides that such indebtedness is not superior in right of payment to the
Senior Subordinated Debt Securities, or which expressly provides that such
indebtedness is subordinate in right of payment to all other indebtedness
of the Company (including the Senior Subordinated Debt Securities),
(D) any indebtedness or obligation of the Company to any of its subsidiaries
and (E) any indebtedness or obligation incurred by the Company in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
The Subordinated Debt Securities will be unsecured obligations of
the Company and will be subordinate and junior in right of payment, to the
extent and in the manner to be set forth in the Subordinated Indenture to
the prior payment in full in cash (or cash equivalents) of amounts then due
on "Senior Indebtedness" of the Company. Except to the extent set forth in
the applicable Prospectus Supplement, the Subordinated Indenture will
define "Senior Indebtedness" of the Company as the principal of (premium,
if any), and interest on (including, without limitation, interest accruing
subsequent to the filing of a petition under applicable Bankruptcy Law or
the appointment of a Custodian), (i) any and all indebtedness and
obligations of the Company (including indebtedness of others guaranteed by
the Company), whether or not contingent and whether or not outstanding on
the Issue Date or thereafter created, incurred or assumed (including,
without limitation, all charges, fees, expenses and other amounts incurred
by or owing to holders of such indebtedness), which (a) is for money
borrowed, (b) is evidenced by any bond, note, debenture or similar
instrument, (c) represents the unpaid balance on the purchase price
of any property, business or asset of any kind, (d) is an obligation of the
Company as lessee under any and all leases of property, equipment or other
assets required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles, (e) is a reimbursement obligation
of the Company with respect to letters of credit, (f) is an obligation of
the Company with respect to an interest swap obligation or foreign exchange
agreement or (g) is an obligation of another secured by a lien to which any
of the properties or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of the
Company is subject, whether or not the obligations secured thereby shall
have been assumed by the Company or will otherwise be the Company's legal
liability and (ii) any deferrals, amendments, renewals, extensions,
modifications and refundings of any indebtedness or obligations of the
types referred to in clause (i) of this paragraph; provided that Senior
Indebtedness will not include (A) the Subordinated Debt Securities, (B) the
Debentures, (C) any indebtedness or obligation of the Company (or the
instrument creating or evidencing it) which expressly provides that such
indebtedness is not superior in right of payment to the Subordinated Debt
Securities, or which expressly provides that such indebtedness is
subordinate in right of payment to all other indebtedness of the Company
(including the Subordinated Debt Securities), (D) any indebtedness or
obligation of the Company to any of its subsidiaries and (E) any
indebtedness or obligation incurred by the Company in connection with the
purchase of assets, materials or services in the ordinary course of
business and which constitutes a trade payable.
<PAGE> 16
The Senior Subordinated Debt Securities will constitute "Senior
Indebtedness" with respect to the Subordinated Debt Securities and the
Debentures.
The Senior Subordinated Indenture will provide that the Company
will not issue any indebtedness that is subordinated in right of payment to
any Senior Indebtedness of the Company and is senior in right of payment to
the Senior Subordinated Debt Securities. The Subordinated Indenture will
not contain a similar provision.
By reason of such subordination, in the event of dissolution,
winding-up, liquidation, insolvency, bankruptcy or other similar
proceedings, upon any distribution of assets of the Company: (i) holders of
Senior Indebtedness will be entitled to be paid in full before payments may
be made on Senior Subordinated Debt Securities and the Subordinated Debt
Securities and the holders of Senior Subordinated Debt Securities and
Subordinated Debt Securities will be required to pay over their share of
such distributions to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full (except to the extent, if at all, that holders
of Senior Subordinated Debt Securities and Subordinated Debt Securities may
receive securities that are subordinated to the same extent the Senior
Subordinated Debt Securities and Subordinated Debt Securities are
subordinated to Senior Indebtedness); (ii) in addition, holders of Senior
Subordinated Debt Securities will be entitled to be paid in full before
payments may be made on Subordinated Debt Securities and holders of
Subordinated Debt Securities will be required to pay over their share of
such distributions to the holders of Senior Subordinated Debt Securities
until such Senior Subordinated Debt Securities are paid in full (except to
the extent, if at all, that holders of Subordinated Debt Securities may
receive securities that are subordinated to the same extent the
Subordinated Debt Securities are subordinated to Senior Subordinated Debt
Securities); and (iii) creditors of the Company who are not holders of
Senior Subordinated Debt Securities or Subordinated Debt Securities may
recover less, ratably, than holders of Senior Indebtedness and may recover
more, ratably, than the holders of the Senior Subordinated Debt Securities
or Subordinated Debt Securities. Accordingly, such subordination may result
in a reduction or elimination of payments to the holders of all Senior
Subordinated Debt Securities and Subordinated Debt Securities.
Except as may otherwise be described in the applicable Prospectus
Supplement, no payment of principal or interest on any of the Offered Debt
Securities that are Senior Subordinated Debt Securities or Subordinated
Debt Securities may be made by the Company, nor may the Company acquire any
Offered Debt Securities that are Senior Subordinated Debt Securities or
Subordinated Debt Securities, in each case except as set forth in the
Indenture for such Offered Debt Securities, if (i) a default in the payment
of principal, premium, if any, or interest on any Senior Indebtedness
occurs and continues beyond the applicable period of grace, if any,
specified in the applicable instrument, lease, contract, agreement or other
document evidencing such Senior Indebtedness with respect to Senior
Indebtedness in an aggregate principal amount of not less than $5,000,000,
or (ii) any event of default with respect to any Senior Indebtedness occurs
permitting the acceleration thereof and such event of default is the
subject of a judicial proceeding or the Company receives written notice of
such event of default from certain specified authorized persons (including
<PAGE> 17
the holder thereof); provided that the foregoing will not prohibit payments
made in accordance with the defeasance provisions of the applicable
Indenture from monies deposited with the Trustee in accordance with such
provisions prior to any such default, judicial proceeding or notice.
However, except as may otherwise be described in the applicable Prospectus
Supplement, the Company may resume payments in respect of the Offered Debt
Securities that are Senior Subordinated Debt Securities or Subordinated
Debt Securities and may acquire such Senior Subordinated Debt Securities or
Subordinated Debt Securities if the default or event of default with
respect to such Senior Indebtedness is cured or waived or ceases to exist
and the terms of the Indenture otherwise permit the payment or acquisition
of such Offered Debt Securities at the time in question. By reason of these
provisions, in the event of a default on any Senior Indebtedness of the
Company that is presently existing or may be incurred in the future,
payments of principal of and interest, if any, on the Offered Debt
Securities that are Senior Subordinated Debt Securities or Subordinated
Debt Securities may not be permitted until such Senior Indebtedness is paid
in full.
Except as may otherwise be described in the applicable Prospectus
Supplement, the subordination provision described herein will not prevent
the occurrence of any Event of Default under the Senior Subordinated
Indenture or the Subordinated Indenture.
The Indenture for the Senior Notes and the Company's principal
credit facility restrict the acquisition by the Company of its subordinated
indebtedness, including any Senior Subordinated Debt Securities or
Subordinated Debt Securities.
In addition, the claims of third parties to the assets of the
Company's subsidiaries incurring obligations to such third parties will be
superior to those of the Company as a stockholder, and therefore the
Offered Debt Securities may be deemed to be effectively subordinated to the
claims of such third parties.
Certain Covenants of the Company
Affirmative Covenants. In addition to such other covenants, if
any, as may be described in the applicable Prospectus Supplement and as
described herein relating to the Senior Indenture, the Indenture for the
Offered Debt Securities will require the Company, subject to certain
limitations described therein, to, among other things, do the following:
(i) pay the principal of, and interest on, the Offered Debt Securities when
the same shall be due and payable; (ii) maintain an office or agency where
Offered Debt Securities may be surrendered for payment or registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Offered Debt Securities and the Indenture may be served;
(iii) deliver to the Trustee copies of all reports filed with the
Commission; (iv) deliver to the Trustee annual officers' certificates with
respect to the Company's compliance with its obligations under that
Indenture; (v) maintain its corporate existence subject to the provisions
<PAGE> 18
described below under the caption "-- Certain Covenants of the Company --
Limitations on Mergers and Consolidations"; (vi) pay its taxes when due
except where such taxes are being contested in good faith; and (vii)
maintain insurance in at least such amounts and against such risks as
are usually and prudently insured against in the same general area by
companies engaged in the same or a similar business. Except as may be
set forth in the accompanying Prospectus Supplement and as described
herein relating to the Senior Indenture, the Indentures will not
restrict the business or operations of the Company or its subsidiaries,
limit their indebtedness or prohibit any liens, charges or other
encumbrances on any properties or other assets they may have from time to
time. See "--Senior Indenture Covenants."
Limitations on Mergers and Consolidations. Except as may otherwise
be provided in the applicable Prospectus Supplement and as described under
the caption "-- Senior Indenture Covenants", the Indenture for the Offered
Debt Securities will provide that the Company will not consolidate or merge
with or into or sell, lease, convey or otherwise dispose of all or
substantially all of its assets (including, without limitation, by way of
liquidation or dissolution) or assign any of its obligations under the
Indenture or the Offered Debt Securities (as an entirety or substantially
an entirety in one transaction or series of related transactions), to any
person unless (i) the person formed by or surviving such consolidation or
merger (if other than the Company), or to which sale, lease, conveyance or
other disposition or assignment will be made (collectively, the
"Successor"), is a solvent corporation or other legal entity organized and
existing under the laws of the United States, one of the states thereof or
the District of Columbia, and the Successor expressly assumes by
supplemental indenture all of the obligations of the Company under the
Offered Debt Securities and the Indenture related thereto, (ii) immediately
after giving effect to such transaction, no default or Event of Default has
occurred and is continuing, and (iii) certain other conditions are met.
Upon compliance with these provisions by the Successor, the Company would
be relieved of its obligations under the Indenture and the Offered Debt
Securities. No quantitative or other established meaning has been given to
the phrase "all or substantially all" by courts which have interpreted this
phrase in various contexts. In interpreting this phrase, courts make a
subjective determination as to the portion of assets conveyed, considering
such factors as the value of the assets conveyed and the proportion of an
entity's income derived from the assets conveyed. Accordingly, there may be
uncertainty as to whether a holder of Offered Debt Securities can determine
whether the Company has sold, leased, conveyed or otherwise disposed of all
or substantially all of its assets and exercise any remedies such holder
may have upon the occurrence of any such transaction.
Senior Indenture Covenants
In addition to the other covenants set forth in the Prospectus and
except as otherwise provided in a Prospectus Supplement relating to the
Offered Debt Securities which are Senior Debt Securities, the Senior
Indenture will include the following covenants:
<PAGE> 19
Reports to Holders of Senior Debt Securities. The Senior Indenture
will provide that as long as more than 10 percent of the original amount of
the Offered Debt Securities is outstanding, the Company will (i) remain
subject to the requirements of Section 13 or 15(d) of the Exchange Act
whether or not it is required to do so by the provisions thereof and will
file with the Commission all periodic reports as may be required thereunder
and (ii) file with the Commission, and with the Trustee within 15 days
after the Company is required to file the same with the Commission, copies
of the periodic reports which the Company may be required to file with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
The Company will also make such reports available to the Holders,
prospective purchasers of the Offered Debt Securities, securities analysts
and broker-dealers upon their written request.
The Senior Indenture will also provide that in the event that (i)
10 percent or less of the original principal amount of the Offered Debt
Securities are outstanding and (ii) the Company is not required to file
with the Commission such reports and other information referred to in the
preceding paragraph, the Company will furnish to the Trustee (A) within 120
days after the end of each fiscal year, annual reports containing the
information required to be contained in Items 1, 2, 3, 5, 6, 7, 8 and 9 of
the Annual Report on Form 10-K promulgated under the Exchange Act, or
substantially the same information required to be contained in comparable
items of any successor form, (B) within 60 days after the end of each of
the first three fiscal quarters of each fiscal year, quarterly reports
containing the information required to be contained in the Quarterly Report
on Form 10-Q promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form and (C) promptly
from the time after the occurrence of an event which would be required to
be reported in the Current Report on Form 8-K if the Company was required
to file such Report, such other reports containing information required to
be contained in the Current Report on Form 8-K promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form.
The Senior Indenture will also provide that the Company will
also comply with the other provisions of Section 314(a) of the TIA.
Disposition of Proceeds of Asset Sales. The Senior Indenture will
provide, subject to the provisions of the Senior Indenture described under
the caption "Limitations on Mergers and Consolidations", that the Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, make any Asset Sale unless (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value for the shares or assets
sold or otherwise disposed of (which will be determined in good faith by
the Board of Directors of the Company); provided that the aggregate
Fair Market Value of the consideration received from any Asset Sale that
is not in the form of cash or cash equivalents will not, when aggregated with
the Fair Market Value of all other noncash consideration received by the
Company and its Restricted Subsidiaries from all previous Asset Sales since
the Issue Date that has not been converted into cash or cash equivalents,
exceed five percent of the Consolidated Tangible Net Assets of the
<PAGE> 20
Company at the time of the Asset Sale under consideration, and (ii) the
Company will apply the aggregate Net Proceeds received by the Company or
any Restricted Subsidiary from all Asset Sales occurring subsequent to the
Issue Date as follows: (A) to repay any outstanding Indebtedness of
the Company that is not subordinated to the Offered Debt Securities,
or other Indebtedness of the Company, or to the payment of any
Indebtedness of any Restricted Subsidiary, in each case, within one year
after such Asset Sale or (B) to replace the properties and assets that
were the subject of the Asset Sale or properties and assets that (as
determined by the Board of Directors of the Company, whose determination
will be conclusive) will be used in the businesses existing on the Issue
Date of the Company and its Restricted Subsidiaries or in businesses
reasonably related thereto within one year after such Asset Sale. The
amount of such Net Proceeds neither used to repay the Indebtedness
described above nor used or invested as set forth in the preceding sentence
constitutes "Excess Proceeds."
The Senior Indenture also will provide that, notwithstanding the
foregoing, to the extent the Company or any of its Restricted Subsidiaries
receives securities or other noncash property or assets as proceeds of an
Asset Sale, the Company will not be required to make any application of
such noncash proceeds required by the provisions of the Senior Indenture
described in the preceding paragraph until it receives cash or cash
equivalent proceeds from a sale, repayment, exchange, redemption or
retirement of or extraordinary dividend or return of capital on such
noncash property. Any amounts deferred pursuant to the preceding sentence
will be applied in accordance with the provisions of the Senior Indenture
described in the preceeding paragraph when cash proceeds are thereafter
received from a sale, repayment, exchange, redemption or retirement of an
extraordinary dividend or return of capital on such noncash property.
The Senior Indenture will also provide that, when the aggregate
amount of Excess Proceeds equals $5,000,000 or more, the Company will so
notify the Trustee in writing by delivery of an Officers' Certificate and
will offer to purchase from all Holders (an "Excess Proceeds Offer"), and
will purchase from Holders accepting such Excess Proceeds Offer on the date
fixed for the closing of such Excess Proceeds Offer (the "Asset Sale Offer
Date"), the maximum principal amount (expressed as a multiple of $1,000) of
Offered Debt Securities that may be purchased out of the Excess Proceeds,
at an offer price (the "Asset Sale Offer Price") in cash in an amount equal
to 100 percent of the principal amount thereof plus accrued and unpaid
interest, if any, to the Asset Sale Offer Date, in accordance with the
procedures set forth in the "Disposition of Proceeds of Asset Sales"
covenant in the Senior Indenture. To the extent that the aggregate amount
of Offered Debt Securities tendered pursuant to an Excess Proceeds Offer is
less than the Excess Proceeds relating thereto, then the Company may use
the Excess Proceeds which exceed the aggregate amount of the Offered Debt
Securities tendered pursuant to such Excess Proceeds Offer for general
corporate purposes. Upon completion of an Excess Proceeds Offer, the amount
of Excess Proceeds will be reset at zero.
<PAGE> 21
In addition, the Senior Indenture will provide that, within 30
days after the date on which the amount of Excess Proceeds equals
$5,000,000 or more, the Company (with notice to the Trustee) or the Trustee
at the Company's request (and at the expense of the Company) will send or
cause to be sent by first-class mail, postage prepaid, to all Holders on
the date such Excess Proceeds equals $5,000,000, at their respective
addresses appearing in the Security Register, a notice of such occurrence
and of such Holders' rights arising as a result thereof.
The Senior Indenture will also provide that:
(a) In the event the aggregate principal amount of
Offered Debt Securities surrendered by Holders exceeds the amount
of Excess Proceeds, the Company will select the Offered Debt
Securities to be purchased on a pro rata basis from all Offered
Debt Securities so surrendered, with such adjustments as may be
deemed appropriate by the Company so that only Offered Debt
Securities in denominations of $1,000, or integral multiples
thereof, will be purchased. To the extent that the Excess Proceeds
remaining are less than $1,000, the Company may use such Excess
Proceeds for general corporate purposes. Holders whose Offered
Debt Securities are purchased only in part will be issued new
Offered Debt Securities equal in principal amount to the
unpurchased portion of the Offered Debt Securities surrendered.
(b) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become
effective any restriction (other than any restriction set forth in
any agreement, indenture, document or instrument relating to any
Existing Indebtedness or Refinancing Indebtedness with respect
thereto) that would materially impair the ability of the Company
to make an Excess Proceeds Offer. Notwithstanding the foregoing,
if an Excess Proceeds Offer is made, the Company will pay for
Offered Debt Securities tendered for purchase in accordance with
the provisions of the Senior Indenture described under the caption
"Disposition of Proceeds of Asset Sales."
(c) Not later than one Business Day prior to the Asset
Sale Offer Date in connection with which the Excess Proceeds Offer
is being made, the Company will (i) accept for payment Offered
Debt Securities or portions thereof tendered pursuant to the
Excess Proceeds Offer (on a pro rata basis if required pursuant to
the provisions of the Senior Indenture described in paragraph (a)
above), (ii) deposit with the Paying Agent money sufficient, in
immediately available funds, to pay the purchase price of all
Offered Debt Securities or portions thereof so accepted and (iii)
deliver to the Paying Agent an Officers' Certificate identifying
the Offered Debt Securities or portions thereof accepted for
payment by the Company. The Paying Agent will promptly mail or
deliver to Holders of Offered Debt Securities so accepted payment
in an amount equal to the Asset Sale Offer Price of the Offered
Debt Securities purchased from each such Holder, and the Company
<PAGE> 22
will execute and upon receipt of an Officers' Certificate of the
Company the Trustee will promptly authenticate and mail or deliver
to such Holder a new Offered Debt Security equal in principal
amount to any unpurchased portion of the Offered Debt Security
surrendered. Any Offered Debt Securities not so accepted will be
promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce
the results of the Excess Proceeds Offer on the Asset Sale Offer
Date. For purposes of the provisions of the Senior Indenture
described above, the Company will choose a Paying Agent which will
not be the Company or a Subsidiary thereof.
(d) Any Excess Proceeds Offer will be conducted by the
Company in compliance with applicable law, including, without
limitation, Section 14(e) of the Exchange Act and Rule 14e-1
thereunder, if applicable.
(e) Whenever Excess Proceeds are received by the Company,
and prior to the allocation of such Excess Proceeds pursuant to
the provisions of the Senior Indenture described under the caption
"Disposition of Proceeds of Asset Sales", such Excess Proceeds
will be set aside by the Company in a separate account to be held
in trust for the benefit of the Holders; provided, however, that
in the event the Company will be unable to set aside such Excess
Proceeds in a separate account because of provisions of applicable
law or any agreement, indenture, document or instrument relating
to Existing Indebtedness or Refinancing Indebtedness with respect
thereto, the Company will not be required to set aside such Excess
Proceeds.
There can be no assurance that sufficient funds will be available
at the time of an Excess Proceeds Offer to make any required repurchases.
In addition, the Company's principal credit facility imposes restrictions
on the Company's ability to purchase the Offered Debt Securities. The
Company's failure to make any required repurchases in the event of an
Excess Proceeds Offer will create an Event of Default under the Senior
Indenture.
Limitations on Restricted Payments. The Senior Indenture will
provide that the Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Restricted Payment, directly or
indirectly, after the Issue Date if at the time of such Restricted Payment:
(i) the amount of such Restricted Payment (the amount of
such Restricted Payment, if other than in cash, will be determined
by the Board of Directors of the Company), when added to the
aggregate amount of all Restricted Payments made after the Issue
Date, exceeds the sum of: (1) $50,000,000, plus (2) 50 percent
of the Company's Consolidated Net Income accrued during the
period (taken as a single period) since January 1, 1995 (or,
if such aggregate Consolidated Net Income is a deficit, minus
100 percent of such aggregate deficit), plus (3) the net cash
proceeds derived from the issuance and sale of Capital Stock
of the Company and its Restricted Subsidiaries that is not
<PAGE> 23
Disqualified Stock (other than a sale to a Subsidiary of the
Company) after the Issue Date but only to the extent not applied
under clause (c) of the definition of "Restricted Payment" set
forth herein, plus (4) 100 percent of the principal amount of any
Indebtedness of the Company or a Restricted Subsidiary that is
converted into or exchanged for Capital Stock of the Company that
is not Disqualified Stock, plus (5) 100 percent of the aggregate
amounts received by the Company or any Restricted Subsidiary
upon the sale, disposition or liquidation (including by way of
dividends) of any Investment but only to the extent (x) not included
in Consolidated Net Income in clause (i)(2) above and (y) that
the making of such Investment constituted a Restricted
Investment made pursuant to the provisions of the Senior
Indenture described in this paragraph, plus (6) 100 percent of the
principal amount of, or if issued at a discount the accreted value
of, any Indebtedness or other obligation that is the subject of a
guaranty by the Company which is released after the Issue Date, but
only to the extent that the granting of such guaranty constituted a
"Restricted Payment" under the definition thereof set forth in the
Senior Indenture and described herein; or
(ii) the Company would be unable to incur an additional
$1.00 of Indebtedness under the Consolidated Fixed Charge Coverage
Ratio set forth under the caption "Limitations on Additional
Indebtedness"; or
(iii) a Default or Event of Default has occurred and is
continuing or occurs as a consequence thereof.
Notwithstanding the foregoing, the provisions of the Senior
Indenture described above will not prevent: (i) the payment of any dividend
within 60 days after the date of declaration thereof if the payment thereof
would have complied with the limitations of the Senior Indenture on the
date of declaration, (ii) the retirement of shares of the Company's Capital
Stock or the Company's or a Subsidiary of the Company's Indebtedness for,
in exchange for or out of the proceeds of a substantially concurrent sale
(other than a sale to a Subsidiary of the Company) of, other shares of its
Capital Stock (other than Disqualified Stock) or (iii) the Company or any
Restricted Subsidiary from making any loan or advance to any Unrestricted
Subsidiary.
Limitations on Additional Indebtedness. The Senior Indenture will
provide that the Company will not, and will not permit any of its
Restricted Subsidiaries to Incur any Indebtedness (other than Indebtedness
between the Company and its Restricted Subsidiaries which are Wholly Owned
Subsidiaries or among such Restricted Subsidiaries which are Wholly Owned
Subsidiaries) including Acquisition Debt, unless, after giving effect
thereto or the application of the proceeds therefrom, the (i) Company's
Consolidated Fixed Charge Coverage Ratio on the date thereof would be at
least 2.0 to 1.0; and (ii) ratio of the Company's Indebtedness (excluding
Non-Recourse Indebtedness) to Consolidated Tangible Net Worth on the date
thereof is not greater than 2.25 to 1.0.
<PAGE> 24
Notwithstanding the foregoing, the provisions of the Senior
Indenture will not prevent: (i) in addition to the Indebtedness permitted
to be Incurred under clauses (ii) and (iii) of this sentence and
Indebtedness permitted to be Incurred under the provisions of the Senior
Indenture described in the preceding paragraph, the Company from Incurring
(A) Refinancing Indebtedness, (B) Non-Recourse Indebtedness and (C)
Indebtedness Incurred for working capital purposes or to finance the
acquisition, holding or development of property by the Company and its
Restricted Subsidiaries (including, without limitation, the financing of
any related interest reserve) in the ordinary course of business in an
aggregate amount at any one time outstanding not to exceed $130,000,000
(excluding any Indebtedness referred to in clauses (i)(A) and (i)(B) of
this paragraph), less the amount of any Indebtedness repaid pursuant to the
provisions of the Senior Indenture described in clause (ii)(A) of the
first paragraph under the caption "Disposition of Proceeds of Asset Sales",
(ii) Unrestricted Subsidiaries from Incurring Indebtedness, (iii) the
Company and its Restricted Subsidiaries from Incurring Indebtedness under
any deposits made to secure performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress statements, government
contracts and other obligations of like nature (exclusive of the obligation
for the payment of borrowed money) in each case Incurred in the ordinary
course of business of the Company or the Restricted Subsidiary consistent
with past practice and (iv) Restricted Subsidiaries from guaranteeing
Indebtedness of the Company or another Restricted Subsidiary.
Restrictions on Restricted Subsidiary Indebtedness. The Senior
Indenture will provide that the Company will not permit any Restricted
Subsidiaries to, directly or indirectly, Incur any additional Indebtedness
after the Issue Date other than: (i) Refinancing Indebtedness, (ii)
Non-Recourse Indebtedness, (iii) Indebtedness to the Company, (iv) any
deposits made to secure performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress statements, government
contracts, and other obligations of like nature (exclusive of the obligation
for the payment of borrowed money), in each case Incurred in the ordinary
course of business of the Restricted Subsidiary and (v) any guaranty
of Indebtedness of the Company or another Restricted Subsidiary.
Limitations and Restrictions on Issuance of Capital Stock of
Restricted Subsidiaries. The Senior Indenture will provide that the Company
will not permit any Restricted Subsidiaries to issue, or permit to be
outstanding at any time, Preferred Stock or any other Capital Stock
constituting Disqualified Stock.
Change of Control. The Senior Indenture will provide that,
following the occurrence of any Change of Control, the Company will so
notify the Trustee in writing by delivery of an Officers' Certificate and
will offer to purchase (a "Change of Control Offer") from all Holders, and
will purchase from Holders accepting such Change of Control Offer on the
date fixed for the closing of such Change of Control Offer (the "Change of
Control Payment Date"), the Outstanding Offered Debt Securities at an offer
price (the "Change of Control Price") in cash in an amount equal to 101
percent of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Payment Date in accordance with
the procedures set forth in the "Change of Control" covenant of the Senior
Indenture.
<PAGE> 25
In addition, the Senior Indenture will provide that, within 30
days after the date of any Change of Control, the Company (with notice to
the Trustee) or the Trustee at the Company's request (and at the expense
of the Company), will send or cause to be sent by first-class mail, postage
prepaid, to all Holders on the date of the Change of Control at their
respective addresses appearing in the Security Register, a notice of such
occurrence and of such Holder's rights arising as a result thereof. Such
notice will contain all instructions and materials necessary to enable
such Holders to tender their Offered Debt Securities to the Company.
The Senior Indenture will also provide that:
(a) In the event of a Change of Control Offer, the
Company will only be required to accept Offered Debt Securities in
denominations of $1,000 or integral multiples thereof.
(b) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become
effective any restriction (other than any restriction set forth in
any agreement, indenture, document or instrument relating to any
Existing Indebtedness or Refinancing Indebtedness with respect
thereto) that would materially impair the ability of the Company
to make a Change of Control Offer. Notwithstanding the foregoing,
if a Change of Control Offer is made, the Company will pay for
Offered Debt Securities tendered for purchase in accordance with
the provisions of the Senior Indenture described under the caption
"Change of Control."
(c) Not later than one Business Day prior to the Change
of Control Payment Date in connection with which the Change of
Control Offer is being made, the Company will (i) accept for
payment Offered Debt Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent money sufficient, in immediately available funds, to
pay the purchase price of all Offered Debt Securities or portions
thereof so accepted and (iii) deliver to the Paying Agent an
Officers' Certificate identifying the Offered Debt Securities or
portions thereof accepted for payment by the Company. The Paying
Agent will promptly mail or deliver to Holders of Offered Debt
Securities so accepted payment in an amount equal to the Change of
Control Price of the Offered Debt Securities purchased from each
such Holder, and the Company will execute and, upon receipt of an
Officer's Certificate of the Company, the Trustee will promptly
authenticate and mail or deliver to such Holder a new Offered Debt
Security equal in principal amount to any unpurchased portion of
the Offered Debt Security surrendered. Any Offered Debt Securities
not so accepted will be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. The Company
will publicly announce the results of the Change of Control Offer on
the Change of Control Payment Date. For purposes of the provisions
of the Senior Indenture described above, the Company will choose a
Paying Agent which will not be the Company or a Subsidiary thereof.
<PAGE> 26
(d) Any Change of Control Offer will be conducted by the
Company in compliance with applicable law, including, without
limitation, Section 14(e) of the Exchange Act and Rule 14e-1
thereunder.
There can be no assurance that sufficient funds will be available
at the time of a Change of Control to make any required repurchases. In
addition, the Company's principal credit facility imposes restrictions on
the Company's ability to purchase the Offered Debt Securities. The
Company's failure to make any required repurchases in the event of a Change
of Control Offer will create an Event of Default under the Senior
Indenture.
No quantitative or other established meaning has been given to the
phrase "all or substantially all" (which appears in the definition of
Change of Control) by courts which have interpreted this phrase in various
contexts. In interpreting this phrase, courts make a subjective
determination as to the portion of assets conveyed, considering such
factors as the value of the assets conveyed and the proportion of an
entity's income derived from the assets conveyed. Accordingly, there may be
uncertainty as to whether a Holder of Offered Debt Securities can determine
whether a Change of Control has occurred and exercise any remedies such
Holder may have upon a Change of Control.
Limitations on Transactions with Affiliates. The Senior Indenture
will provide that the Company will not, and will not permit any of its
Subsidiaries to, make any loan, advance, guaranty or capital contribution
to or for the benefit of, or sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or for the benefit of, or purchase or
lease any property or assets from, or enter into or amend any contract,
agreement or understanding with, or for the benefit of, (i) any Affiliate
of the Company or any Affiliate of the Company's Subsidiaries or (ii) any
Person (or any Affiliate of such Person) holding 10 percent or more of the
Common Equity of the Company or any of its Subsidiaries (each an "Affiliate
Transaction"), except on terms that are no less favorable to the Company or
the relevant Subsidiary, as the case may be, than those that could have
been obtained in a comparable transaction on an arms' length basis from a
Person that is not an Affiliate.
The Senior Indenture will also provide that the Company will not,
and will not permit any of its Subsidiaries to, enter into an Affiliate
Transaction involving or having a value of more than $10,000,000, unless in
each case such Affiliate Transaction has been approved by a majority of the
disinterested members of the Company's Board of Directors.
The Senior Indenture will also provide that the Company will not,
and will not permit any of its Subsidiaries to, enter into any Affiliate
Transaction involving or having a value of more than $20,000,000 unless the
Company has delivered to the Trustee an opinion of an Independent Financial
Advisor to the effect that the transaction is fair to the Company or the
relevant Subsidiary, as the case may be, from a financial point of view.
<PAGE> 27
The Senior Indenture will also provide that, notwithstanding the
foregoing, an Affiliate Transaction will not include (i) any contract,
agreement or understanding with, or for the benefit of, or plan for the
benefit of, employees or directors of the Company or its Subsidiaries (in
their capacity as such) that has been approved by the Company's Board of
Directors, (ii) Capital Stock issuances to members of the Board of
Directors, officers and employees, of the Company or its Subsidiaries
pursuant to plans approved by the stockholders of the Company, (iii) any
Restricted Payment otherwise permitted under the provisions of the Senior
Indenture described under the caption "Limitations on Restricted Payments",
(iv) any transaction between the Company or a Restricted Subsidiary and
another Restricted Subsidiary or (v) any contract, agreement or
understanding as in effect on the Issue Date or any amendment thereto or
any transaction contemplated thereby (including any amendment thereto).
Limitations on Liens. The Senior Indenture will provide that the
Company will not, and will not permit any of its Restricted Subsidiaries
to, create, Incur, assume or suffer to exist any Liens, other than
Permitted Liens, on any of its or their assets, property, income or profits
therefrom unless contemporaneously therewith or prior thereto all payments
due under the Senior Indenture and the Offered Debt Securities are secured
on an equal and ratable basis with the obligation or liability so secured
until such time as such obligation or liability is no longer secured by a
Lien.
Limitations on Restrictions on Distributions from Restricted
Subsidiaries. The Senior Indenture will provide that the Company will not,
and will not permit any of its Restricted Subsidiaries to, create, assume
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction (other than encumbrances or restrictions imposed
by law or by judicial or regulatory action or by provisions in leases or
other agreements that restrict the assignability thereof) on the ability of
any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock or any other interest or participation
in, or measured by, its profits, owned by the Company or any of its other
Restricted Subsidiaries, or pay interest on or principal of any
Indebtedness owed to the Company or any of its other Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its
other Restricted Subsidiaries, or (iii) transfer any of its properties or
assets to the Company or any of its other Restricted Subsidiaries, except
for encumbrances or restrictions existing under or by reason of (a)
applicable law, (b) covenants or restrictions contained in Existing
<PAGE> 28
Indebtedness as in effect on the Issue Date, (c) any restrictions or
encumbrances arising in connection with the Existing Credit Facility;
provided that any such restrictions and encumbrances relating to any
extension or renewal of the Existing Credit Facility are not more
restrictive than those in the Existing Credit Facility being extended or
renewed, (d) any restrictions or encumbrances arising in connection with
Refinancing Indebtedness; provided that any restrictions and encumbrances
of the type described in this clause (d) that arise under such Refinancing
Indebtedness are not more restrictive than those under the agreement
creating or evidencing the Indebtedness being refunded or refinanced, (e)
any agreement restricting the sale or other disposition of property
securing Indebtedness permitted by the Senior Indenture if such agreement
does not expressly restrict the ability of a Subsidiary of the Company to
pay dividends or make loans or advances, and (f) reasonable and customary
borrowing base covenants set forth in credit agreements evidencing
Indebtedness otherwise permitted by the Senior Indenture which covenants
restrict or limit the distribution of revenues or sale proceeds from real
estate or a real estate project based upon the amount of Indebtedness
outstanding on such real estate or real estate project and the value of
some or all of the remaining real estate or the project's remaining assets.
Maintenance of Consolidated Tangible Net Worth. The Senior
Indenture will provide that in the event that the Consolidated Tangible Net
Worth of the Company for any two consecutive fiscal quarters is less than
$115,000,000, within 30 days after the end of each such period the Company
will so notify the Trustee in writing by delivery of an Officers'
Certificate and will offer to purchase from all Holders (a "Net Worth
Offer"), and will purchase from Holders accepting such Net Worth Offer on
the date fixed for the closing of such Net Worth Offer (the "Net Worth
Offer Date"), ten percent of the original Outstanding principal amount of
the Offered Debt Securities (the "Net Worth Amount") at an offer price (the
"Net Worth Offer Price") in cash in an amount equal to 100 percent of the
principal amount thereof plus accrued and unpaid interest, if any, to the
Net Worth Offer Date, in accordance with the procedures set forth in the
"Maintenance of Consolidated Tangible Net Worth" covenant of the Senior
Indenture. To the extent that the aggregate amount of Offered Debt
Securities tendered pursuant to a Net Worth Offer is less than the Net
Worth Amount relating thereto, then the Company may use the excess of the
Net Worth Amount over the amount of Offered Debt Securities tendered, or a
portion thereof, for general corporate purposes.
The Senior Indenture will also provide that in the event that the
Consolidated Tangible Net Worth of the Company for any two consecutive
fiscal quarters is less than $115,000,000, within 30 days after the end of
such period, the Company (with notice to the Trustee) or the Trustee at the
Company's request (and at the expense of the Company) will send or cause to
be sent by first-class mail, postage prepaid, to all Holders on the date of
the end of the second such consecutive fiscal quarter, at their respective
addresses appearing in the Security Register, a notice of such occurrence
and of each Holder's rights arising as a result thereof. Such notice will
contain all instructions and materials necessary to enable Holders to
tender their Offered Debt Securities to the Company.
<PAGE> 29
The Senior Indenture will also provide that:
(a) In the event that the aggregate principal amount of
Offered Debt Securities surrendered by Holders exceeds the Net
Worth Amount, the Company will select the Offered Debt Securities
to be purchased on a pro rata basis from all Offered Debt
Securities so surrendered, with such adjustments as may be deemed
appropriate by the Company so that only Offered Debt Securities in
denominations of $1,000, or integral multiples thereof, will be
purchased. To the extent that the Net Worth Amount remaining is
less than $1,000, the Company may use such Net Worth Amount for
general corporate purposes. Holders whose Offered Debt Securities
are purchased only in part will be issued new Offered Debt
Securities equal in principal amount to the unpurchased portion of
the Offered Debt Securities surrendered.
(b) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become
effective any restriction (other than any restriction set forth in
any agreement, indenture, document or instrument relating to any
Existing Indebtedness or Refinancing Indebtedness with respect
thereto) that would materially impair the ability of the Company
to make a Net Worth Offer. Notwithstanding the foregoing, if a Net
Worth Offer is made, the Company will pay for Offered Debt
Securities tendered for purchase in accordance with the provisions
of the Senior Indenture described under the caption "Maintenance
of Consolidated Tangible Net Worth."
(c) Not later than one Business Day prior to the Net
Worth Offer Date in connection with which the Net Worth Offer is
being made, the Company will (i) accept for payment Offered Debt
Securities or portions thereof tendered pursuant to the Net Worth
Offer (on a pro rata basis if required pursuant to the provisions
of the Senior Indenture described in paragraph (a) above), (ii)
deposit with the Paying Agent money sufficient, in immediately
available funds, to pay the purchase price of all Offered Debt
Securities or portions thereof so accepted and (iii) deliver to
the Paying Agent with an Officers' Certificate identifying the
Offered Debt Securities or portions thereof accepted for payment
by the Company. The Paying Agent will promptly mail or deliver to
Holders of Offered Debt Securities so accepted payment in an
amount equal to the Net Worth Offer Price of the Offered Debt
Securities purchased from each such Holder, and the Company will
execute and the Trustee will promptly authenticate and mail or
deliver to such Holder a new Offered Debt Security equal in
principal amount to any unpurchased portion of the Offered Debt
Security surrendered. Any Offered Debt Securities not so accepted
will be promptly mailed or delivered by the Paying Agent at the
Company's expense to the Holder thereof. The Company will publicly
announce the results of the Net Worth Offer on the Net Worth Offer
Date. For purposes of the provisions of the Senior Indenture
described above, the Company will choose a Paying Agent which will
not be the Company or a Subsidiary thereof.
<PAGE> 30
(d) Any Net Worth Offer will be conducted by the Company
in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder, if
applicable.
There can be no assurance that sufficient funds will be available
at the time of a Net Worth Offer to make any required repurchases. In
addition, the Company's principal credit facility imposes restrictions on
the Company's ability to purchase the Offered Debt Securities. The
Company's failure to make any required repurchases in the event of a Net
Worth Offer will create an Event of Default under the Senior Indenture.
Limitations on Mergers and Consolidations. The Senior Indenture
will provide that the Company will not consolidate or merge with or into,
or sell, lease, convey or otherwise dispose of all or substantially all of
its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations thereunder or under the
Offered Debt Securities (as an entirety or substantially an entirety in one
transaction or series of related transactions), to any Person unless: (i)
the Person formed by or surviving such consolidation or merger (if other
than the Company), or to which sale, lease, conveyance or other disposition
or assignment will be made (collectively, the "Successor"), is a solvent
corporation or other legal entity organized and existing under the laws of
the United States or any state thereof or the District of Columbia, and the
Successor assumes by supplemental indenture in a form reasonably
satisfactory to the Trustee all of the obligations of the Company under the
Offered Debt Securities and the Senior Indenture, (ii) immediately after
giving effect to such transaction, no Default or Event of Default has
occurred and is continuing, (iii) immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis,
the Consolidated Tangible Net Worth of the Company or the Successor, as the
case may be, would be at least equal to the Consolidated Tangible Net Worth
of the Company immediately prior to such transaction and (iv) the
Consolidated Fixed Charge Coverage Ratio set forth in the Senior Indenture
and described under the caption "Limitations on Additional Indebtedness" of
the Company or the Successor, as the case may be, immediately after giving
effect to such transaction, would be such that the Company or the
Successor, as the case may be, would be entitled to Incur at least $1 of
additional Indebtedness under such Consolidated Fixed Charge Coverage Ratio
test. However, any such consolidation, merger, sale, lease, conveyance or
disposition may result in a Change of Control, thereby requiring the
Company to make a Change of Control Offer. See "-- Senior Indenture
Covenants -- Change of Control."
No quantitative or other established meaning has been given to
the phrase "all or substantially all" by courts which have interpreted
this phrase in various contexts. In interpreting this phrase, courts make
a subjective determination as to the portion of assets conveyed,
considering such factors as the value of the assets conveyed and the
proportion of an entity's income derived from the assets conveyed.
Accordingly, there may be uncertainty as to whether a Holder of Offered Debt
Securities can determine whether the Company has sold, leased, conveyed or
otherwise disposed of all or substantially all of its assets and exercise
any remedies such Holder may have upon the occurrence of any such transaction.
<PAGE> 31
For purposes solely of this "Senior Indenture Covenants" section
of this Prospectus, the terms set forth below shall have the following
meanings:
"Acquisition Debt" means Indebtedness of any Person existing at
the time such Person became a Subsidiary of the Company (or such Person is
merged into the Company or one of the Company's Subsidiaries) or assumed in
connection with the acquisition of assets from any such Person (other than
assets acquired in the ordinary course of business of the Company and its
Subsidiaries), including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary
of the Company (but excluding Indebtedness of such Person which is
extinguished, retired or repaid in connection with such Person becoming a
Subsidiary of the Company).
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control
with, such Person. For purposes of the Senior Indenture, each executive
officer and director of the Company and each Restricted Subsidiary will be
an Affiliate of the Company. In addition, for purposes of the Senior
Indenture, control of a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, the term "Affiliate" will not include, with respect to the
Company or any Restricted Subsidiary which is a Wholly Owned Subsidiary of
the Company, any Restricted Subsidiary which is a Wholly Owned Subsidiary
of the Company.
"Asset Sale" for any Person means the sale, lease, conveyance or
other disposition (including, without limitation, by merger, consolidation
or sale and leaseback transaction, and whether by operation of law or
otherwise) of any of that Person's assets (including, without limitation,
the sale or other disposition of Capital Stock of any Subsidiary of such
Person, whether by such Person or such Subsidiary), whether owned on the
Issue Date of the Offered Debt Securities or subsequently acquired in one
transaction or a series of related transactions, in which such Person
and/or Subsidiaries receive cash and/or other consideration (including,
without limitation, the unconditional assumption of Indebtedness of such
Person and/or its Subsidiaries) having an aggregate Fair Market Value of
$5,000,000 or more as to such transaction or series of related
transactions; provided, however, (i) sales of homes and sales of mortgages
on homes in the ordinary course of business consistent with past practices
will not constitute Asset Sales, (ii) sales, leases, conveyances or other
dispositions, including, without limitation, exchanges or swaps, of real
estate or other assets in the ordinary course of business consistent with
past practices will not constitute Asset Sales, (iii) sales, leases,
sale-leasebacks or other dispositions of amenities and other improvements
at the Company's or its Subsidiaries' communities in the ordinary course of
business consistent with past practices will not constitute Asset Sales,
and (iv) transactions between the Company and any of its Restricted
Subsidiaries which are Wholly Owned Subsidiaries, or among such Restricted
Subsidiaries which are Wholly Owned Subsidiaries of the Company will not
constitute Asset Sales.
<PAGE> 32
"Board of Directors" means the board of directors of a Person or
any authorized committee of the board of directors of such Person.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however
designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such
Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means any
obligation of such Person to pay rent or other amounts under a lease that
is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligation will be the
capitalized amount thereof determined in accordance with GAAP.
"Change of Control" means any of the following: (i) the sale,
lease, conveyance or other disposition of all or substantially all of the
Company's assets as an entirety or substantially as an entirety to any
Person or group of Persons (within the meaning of Section 13(d)(3) of the
Exchange Act) in one or a series of transactions; provided that a
transaction where the holders of all classes of Common Equity of the
Company immediately prior to such transaction own, directly or indirectly,
50 percent or more of the aggregate voting power of all classes of Common
Equity of such Person or group immediately after such transaction will not
be a Change of Control, (ii) the acquisition by the Company and/or any of
its Subsidiaries of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company in one transaction or a series of
related transactions, (iii) the liquidation or dissolution of the Company;
provided that a liquidation or dissolution of the Company which is part of
a transaction or series of related transactions that does not constitute a
Change of Control under the "provided" clause of clause (i) above will not
constitute a Change of Control under this clause (iii) or (iv) any
transaction or a series of related transactions (as a result of a tender
offer, merger, consolidation or otherwise) that results in, or that is in
connection with, (a) any Person, including, a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) acquiring beneficial ownership (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company or of any Person that possesses
beneficial ownership (as determined in accordance with Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50 percent or more of the aggregate
voting power of all classes of Common Equity of the Company or (b) less
than 50 percent (measured by the aggregate voting power of all classes)
of the Common Equity of the Company being registered under Section 12(b) or
12(g) of the Exchange Act.
<PAGE> 33
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled (i) to vote in the election of directors
of such Person, or (ii) if such Person is not a corporation, to vote or
otherwise participate in the selection of the governing body, partners,
managers or others that will control the management and policies of such
Person.
"Consolidated Cash Flow Available for Fixed Charges" of the
Company means, for any period, the sum of the amounts for such period of
(i) Consolidated Net Income, plus (ii) Consolidated Income Tax Expense
(other than income tax expense (either positive or negative) attributable
to extraordinary and nonrecurring gains or losses on Asset Sales), plus
(iii) Consolidated Interest Expense, plus (iv) all depreciation, and
without duplication, amortization (including, without limitation,
previously capitalized interest amortized to cost of sales), plus (v) all
other noncash items reducing Consolidated Net Income for such period,
minus (vi) all other noncash items increasing Consolidated Net Income
for such period, all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" of the Company means,
with respect to any determination date, the ratio of (i) Consolidated Cash
Flow Available for Fixed Charges of the Company for the prior four full
fiscal quarters for which financial results have been reported immediately
preceding the determination date, to (ii) the aggregate Consolidated
Interest Incurred of the Company for the prior four fiscal quarters for
which financial results have been reported immediately preceding the
determination date.
"Consolidated Income Tax Expense" of the Company for any period
means the income tax expense of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" of the Company for any period
means the Interest Expense of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Incurred" of the Company for any period
means the Interest Incurred of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" of the Company for any period means the
aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that there will be excluded from such net
income (to the extent otherwise included therein), without duplication: (i)
<PAGE> 34
the net income (or loss) of any Person (other than a Restricted Subsidiary)
in which any Person (including, without limitation, an Unrestricted
Subsidiary) other than the Company has an ownership interest, except to the
extent that any such income has actually been received by the Company or
any Restricted Subsidiary in the form of dividends or similar distributions
during such period, (ii) except to the extent includable in the
Consolidated Net Income pursuant to the foregoing clause (i), the net
income (or loss) of any Person that accrued prior to the date that (a) such
Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (b) the assets of
such Person are acquired by the Company or any of its Restricted
Subsidiaries, (iii) the net income of any Restricted Subsidiary to the
extent that (but only so long as) the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of that income is
not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary during such period,
(iv) in the case of a successor to the Company by consolidation, merger or
transfer of its assets, any earnings of the successor prior to such merger,
consolidation or transfer of assets and (v) the gains (but not losses)
resulting from (a) the acquisition of securities issued by the Company or
extinguishment of Indebtedness of the Company, (b) Asset Sales and (c)
other extraordinary items. Notwithstanding the foregoing, in calculating
Consolidated Net Income, the Company will be entitled to take into
consideration the tax benefits associated with any extraordinary loss, but
only to the extent such tax benefits are recognized by the Company.
Consolidated Net Income will exclude any noncash losses, whether or not
extraordinary, incurred in connection with the issuance of Capital Stock
(other than Disqualified Stock) in exchange for Indebtedness of the Company
or its Wholly Owned Restricted Subsidiaries.
"Consolidated Tangible Net Assets" of the Company as of any date
means the total amount of assets of the Company and its Restricted
Subsidiaries (less applicable reserves) on a consolidated basis at the end
of the fiscal quarter immediately preceding such date, as determined in
accordance with GAAP, less: (i) Intangible Assets and (ii) appropriate
adjustments on account of minority interests of other Persons holding
equity investments in Restricted Subsidiaries, in the case of each of
clauses (i) and (ii) above as reflected on the consolidated balance sheet
of the Company and its Restricted Subsidiaries as of the end of the fiscal
quarter immediately preceding such date.
"Consolidated Tangible Net Worth" of the Company as of any date
means the stockholders' equity (including any Preferred Stock that is
classified as equity under GAAP, other than Disqualified Stock) of the
Company and its Restricted Subsidiaries on a consolidated basis at the end
of the fiscal quarter immediately preceding such date, as determined in
accordance with GAAP, less the amount of Intangible Assets reflected on the
consolidated balance sheet of the Company and its Restricted Subsidiaries
as of the end of the fiscal quarter immediately preceding such date.
<PAGE> 35
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Defeasance" has the meaning set forth in Section 11.02 of the
Senior Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to the final Maturity date of the Offered Debt Securities;
provided that any Capital Stock which would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to
require the Company to repurchase or redeem such Capital Stock upon the
occurrence of a change of control occurring prior to the final Maturity of
the Offered Debt Securities will not constitute Disqualified Stock if the
change of control provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions of the
Senior Indenture described under the caption "Change of Control" and such
Capital Stock specifically provides that the Company will not repurchase or
redeem (or be required to repurchase or redeem) any such Capital Stock
pursuant to such provisions prior to the Company's repurchase of Offered
Debt Securities pursuant to the "Change of Control" covenant set forth in
the Senior Indenture.
"Disqualified Stock Dividend" of any Person means, for any
dividend payable with regard to Disqualified Stock issued by such Person,
the amount of such dividend multiplied by a fraction, the numerator of
which is one and the denominator of which is one minus the maximum
statutory combined federal, state and local income tax rate (expressed as a
decimal number between 1 and 0) then applicable to such Person.
"Event of Default" has the meaning set forth under the caption "--
Events of Default".
"Existing Credit Facility" means the Credit Agreement, dated as of
September 29, 1995, between the Company and the lenders named therein and
The First National Bank of Chicago, as Agent (together with the documents
related thereto (including, without limitation, any guaranty agreements)),
as such Facility may be amended, restated, supplemented or otherwise
modified from time to time, and includes any facility extending the
maturity of, increasing the total commitment of, or restructuring
(including, without limitation, the inclusion of additional borrowers
thereunder that are Subsidiaries of the Company and whose obligations
thereunder are guaranteed by the Company) all or any portion of, the
Indebtedness under such Facility or any successor or replacement facilities
and includes any facility with one or more agents or lenders refinancing or
replacing all or any portion of the Indebtedness under such Facility or any
successor facilities.
"Existing Indebtedness" means all of the Indebtedness of the
Company and its Subsidiaries that is outstanding on the Issue Date.
<PAGE> 36
"Fair Market Value" with respect to any asset or property means
the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the
Issue Date.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures
contract or other similar agreement or arrangement relating to interest
rates or foreign exchange rates.
"Holder" means a Person in whose name an Offered Debt Security is
registered.
"Incur" means to, directly or indirectly, create, incur, assume,
guaranty, extend the maturity of, or otherwise become liable with respect
to any Indebtedness.
"Indebtedness" of any Person at any date means, without
duplication, (i) all indebtedness of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit or
other similar instruments (or reimbursement obligations with respect
thereto), other than standby letters of credit issued for the benefit of,
or surety and performance bonds issued by, such Person in the ordinary
course of business, (iv) all obligations of such Person with respect to
Hedging Obligations (other than those that fix or cap the interest rate on
variable rate indebtedness otherwise permitted by the Senior Indenture or
that fix the exchange rate in connection with indebtedness denominated in a
foreign currency and otherwise permitted by the Senior Indenture and other
than the purchase of mortgage commitments in the ordinary course of
business), (v) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, including, without
limitation, all conditional sale obligations of such Person and all
obligations under any title retention agreement (except trade payables and
accrued expenses incurred in the ordinary course of business), (vi) all
Capitalized Lease Obligations of such Person, (vii) all indebtedness of
others secured by a Lien on any asset of such Person, whether or not such
indebtedness is assumed by such Person, (viii) all indebtedness of others
guaranteed by, or otherwise the liability of, such Person to the extent of
<PAGE> 37
such guaranty or liability, and (ix) all Disqualified Stock issued by such
Person (the amount of indebtedness represented by any Disqualified Stock
will equal the greater of the voluntary or involuntary liquidation
preference plus accrued and unpaid dividends). The amount of indebtedness
of any Person at any date will be (a) the outstanding balance at such date
of all unconditional obligations as described above, (b) the maximum
liability of such Person for any contingent obligations under clause (v)
above and (c) in the case of clause (vii) (if the indebtedness referred to
therein is not assumed by such Person), the lesser of the (A) Fair Market
Value of all assets subject to a Lien securing the indebtedness of others
on the date that the Lien attaches and (B) amount of the indebtedness
secured.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, (i) qualified to
perform the task for which it has been engaged, and (ii) disinterested and
independent with respect to the Company, all of its Subsidiaries, and each
Affiliate of the Company and/or its Subsidiaries that is involved in the
Affiliate Transaction with respect to which such firm has been engaged.
"Intangible Assets" of the Company means all unamortized debt
discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, write-ups of assets
over their carrying value at the end of the last fiscal quarter ended prior
to the Issue Date or the date of acquisition, if acquired subsequent
thereto, and all other items which would be treated as intangibles on the
consolidated balance sheet of the Company and its Restricted Subsidiaries
prepared in accordance with GAAP.
"Interest Expense" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for such Person (including, without
limitation, imputed interest included on Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to
letters of credit securing financial obligations and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales) and includes, with respect to the Company and
its Restricted Subsidiaries, without duplication (including duplication of
the foregoing items), all interest included as a component of cost of sales
for such period, and (ii) the amount of Disqualified Stock Dividends
recognized by the Company on any Disqualified Stock whether or not paid
during such period.
<PAGE> 38
"Interest Incurred" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for such Person (including, without
limitation, imputed interest included on Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to
letters of credit securing financial obligations and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales) and includes, with respect to the Company and
its Restricted Subsidiaries, without duplication (including duplication of
the foregoing items), all capitalized interest for such period, all
interest attributable to discontinued operations for such period to the
extent not set forth on the income statement under the caption "interest
expense" or any like caption, and all interest actually paid by the Company
or a Restricted Subsidiary under any guaranty of Indebtedness (including,
without limitation, a guaranty of principal, interest or any combination
thereof) of any other Person during such period and (ii) the amount of
Disqualified Stock Dividends recognized by the Company on any Disqualified
Stock whether or not declared during such period.
"Investments" of any Person means all (i) investments by such
Person in any other Person in the form of loans, advances or capital
contributions, (ii) guarantees of Indebtedness or other obligations of any
other Person by such Person, (iii) purchases (or other acquisitions for
consideration) by such Person of Indebtedness, Capital Stock or other
securities of any other Person and (iv) other items that would be
classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person determined in accordance with GAAP.
"Issue Date" means the date of original issuance of the Offered
Debt Securities.
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in New York, New York or at a Place of Payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a Place of Payment, payment shall be
made at that place on the next succeeding day that is not a Legal Holiday.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or other similar encumbrance of any kind
upon or in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including, without limitation,
any conditional sale or other title retention agreement, and any lease in
the nature thereof, any option or other agreement to sell, and any filing
of, or agreement to give, any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
<PAGE> 39
"Maturity", when used with respect to an Offered Debt Security,
means the date on which the principal of such Offered Debt Security or an
installment of principal becomes due and payable as therein provided or
provided in the Senior Indenture, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Net Proceeds" means cash (in U.S. dollars or freely convertible
into U.S. dollars) received by the Company or any Restricted Subsidiary
from an Asset Sale net of (i)(a) all brokerage commissions, investment
banking fees and all other fees and expenses (including, without
limitation, fees and expenses of counsel and investment bankers) related to
such Asset Sale, (b) provisions for all income and other taxes measured by
or resulting from such Asset Sale, (c) payments made to retire Indebtedness
where payment of such Indebtedness is required in connection with such
Asset Sale, (d) amounts required to be paid to any Person (other than the
Company or a Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (e) appropriate amounts to be provided
by the Company or any Restricted Subsidiary thereof, as the case may be, as
a reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary
thereof, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee, and (ii)
all noncash consideration received by the Company or any of its Restricted
Subsidiaries from such Asset Sale upon the liquidation or conversion of
such consideration into cash, without duplication, net of all items
enumerated in subclauses (a) through (e) of clause (i) hereof.
"Non-Recourse Indebtedness" with respect to any Person means
Indebtedness of such Person for which (i) the sole legal recourse for
collection of principal and interest on such Indebtedness is against the
specific property identified in the instruments evidencing or securing such
Indebtedness and (ii) no other assets of such Person may be realized upon
in collection of principal or interest on such Indebtedness.
"Officer" means the Chairman of the Board, the President, the
Senior Vice President, Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or
Co-Chief Executive Officer), Chief Operating Officer, Chief Financial
Officer or Chief Accounting Officer.
"Outstanding", when used with respect to Offered Debt Securities,
means, as of the date of determination, all Offered Debt Securities
theretofore authenticated and delivered under the Senior Indenture, except:
(i) Offered Debt Securities theretofore canceled by
the Trustee or delivered to the Trustee for cancellation;
<PAGE> 40
(ii) Offered Debt Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Offered Debt Securities; provided that, if such
Offered Debt Securities are to be redeemed, notice of such
redemption has been duly given pursuant to the Senior Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Offered Debt Securities as to which the Defeasance
has been effected pursuant to the defeasance provisions, if any,
of the Senior Indenture; and
(iv) Offered Debt Securities which have been paid
pursuant to the "Mutilated, Destroyed, Lost and Stolen Securities"
section of the Senior Indenture or in exchange for or in lieu of
which other Offered Debt Securities have been authenticated and
delivered pursuant to the Senior Indenture, other than any such
Offered Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Offered Debt Securities are held by a bona fide purchaser in whose
hands such Offered Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Offered Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver under
the Senior Indenture, (a) the principal amount of an Offered Debt Security
denominated in one or more foreign currencies or currency units shall be
the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.01 of the Senior Indenture on the Issue Date, of
the principal amount of such Offered Debt Security, and (b) Offered Debt
Securities owned by the Company or any other obligor of the Offered Debt
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Offered Debt Securities which the Trustee knows to be so owned shall be so
disregarded. Offered Debt Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Offered Debt Securities and that the pledgee is not the Company or any
other obligor upon the Offered Debt Securities or any Subsidiary of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any interest on any Offered Debt Security.
<PAGE> 41
"Permitted Investment" of any Person means any Investment of such
Person in (i) direct obligations of the United States or any agency thereof
or obligations guaranteed by the United States or any agency thereof, in
each case maturing within 180 days of the date of acquisition thereof, (ii)
certificates of deposit maturing within 180 days of the date of acquisition
thereof issued by a bank, trust company or savings and loan association
which is organized under the laws of the United States or any state thereof
having capital, surplus and undivided profits aggregating in excess of $250
million and a Keefe Bank Watch Rating of C or better (or a similar rating
by any successor thereof), (iii) certificates of deposit maturing within
180 days of the date of acquisition thereof issued by a bank, trust company
or savings and loan association organized under the laws of the United
States or any state thereof other than banks, trust companies or savings
and loan associations satisfying the criteria in (ii) above, provided that
the aggregate amount of all certificates of deposit issued to the Company
at any one time by such bank, trust company or savings and loan association
will not exceed $100,000, (iv) commercial paper given the highest rating by
two established national credit rating agencies and maturing not more than
180 days from the date of the acquisition thereof, (v) repurchase
agreements or money-market accounts which are fully secured by direct
obligations of the United States or any agency thereof and (vi) in the case
of the Company and its Subsidiaries, any receivables or loans taken by the
Company or a Subsidiary in connection with the sale of any asset otherwise
permitted by the Senior Indenture.
"Permitted Liens" means (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to
which appropriate reserves have been established or other provisions have
been made in accordance with GAAP, (ii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other Liens imposed by law and arising in the ordinary
course of business and with respect to amounts that, to the extent
applicable, either (a) are not yet delinquent or (b) are being contested in
good faith by appropriate proceedings and as to which appropriate reserves
have been established or other provisions have been made in accordance with
GAAP, (iii) Liens (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, (iv) Liens
incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, progress payments,
government contracts and other obligations of like nature (exclusive of
obligations for the payment of borrowed money), in each case incurred in
the ordinary course of business of the Company and its Subsidiaries, (v)
attachment or judgment Liens not giving rise to a Default or an Event of
Default and which are being contested in good faith by appropriate
proceedings, (vi) easements, rights-of-way, restrictions and other similar
charges or encumbrances not materially interfering with the ordinary course
of business of the Company and its Subsidiaries, (vii) zoning restrictions,
licenses, restrictions on the use of real property or minor irregularities
in title thereto, which do not materially impair the use of such real
<PAGE> 42
property in the ordinary course of business of the Company and its
Subsidiaries or the value of such real property for the purpose of such
business, (viii) leases or subleases granted to others not materially
interfering with the ordinary course of business of the Company and its
Subsidiaries, (ix) purchase money mortgages (including, without limitation,
Capitalized Lease Obligations and purchase money security interests), (x)
Liens securing Refinancing Indebtedness; provided that such Liens only
extend to assets which are similar to the type of assets securing the
Indebtedness being refinanced and such refinanced Indebtedness was
previously secured by such similar assets, (xi) Liens securing Indebtedness
of the Company and its Restricted Subsidiaries; provided that the aggregate
amount of Indebtedness secured by Liens (other than Non-Recourse
Indebtedness secured by Liens) will not exceed 40 percent of Consolidated
Tangible Net Assets, (xii) any interest in or title of a lessor to property
subject to any Capitalized Lease Obligations incurred in compliance with
the provisions of the Senior Indenture, (xiii) Liens existing on the Issue
Date, including, without limitation, Liens securing Existing Indebtedness,
(xiv) any option, contract or other agreement to sell an asset; provided
such sale is not otherwise prohibited under the Senior Indenture, (xv)
Liens securing Non-Recourse Indebtedness of the Company or a Restricted
Subsidiary thereof, (xvi) Liens on property or assets of any Restricted
Subsidiary securing Indebtedness of such Restricted Subsidiary owing to the
Company or one or more Restricted Subsidiaries, (xvii) Liens securing
Indebtedness of an Unrestricted Subsidiary, (xviii) any right of a lender
or lenders to which the Company or a Restricted Subsidiary may be indebted
to offset against, or appropriate and apply to the payment of, such
Indebtedness any and all balances, credits, deposits, accounts or monies of
the Company or a Restricted Subsidiary with or held by such lender or
lenders and (xix) any pledge or deposit of cash or property in conjunction
with obtaining surety and performance bonds and letters of credit required
to engage in constructing on-site and off-site improvements required by
municipalities or other governmental authorities in the ordinary course of
business of the Company, by the Company or any Restricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the Offered Debt
Securities, means the place or places where the principal of and interest
on the Offered Debt Securities are payable.
"Preferred Stock" of any Person means all Capital Stock of such
Person which has a preference in liquidation or with respect to the payment
of dividends.
<PAGE> 43
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Existing Indebtedness or other Indebtedness
permitted to be Incurred by the Company or its Restricted Subsidiaries
pursuant to the terms of the Senior Indenture, but only to the extent that
(i) the Refinancing Indebtedness is subordinated to the Offered Debt
Securities to the same extent as the Indebtedness being refunded,
refinanced or extended, if at all, (ii) the Refinancing Indebtedness is
scheduled to mature either (a) no earlier than the Indebtedness being
refunded, refinanced or extended, or (b) after the maturity date of the
Offered Debt Securities, (iii) the portion, if any, of the Refinancing
Indebtedness that is scheduled to mature on or prior to the Maturity date
of the Offered Debt Securities has a Weighted Average Life to Maturity at
the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Weighted Average Life to Maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to
mature on or prior to the Maturity date of the Offered Debt Securities,
(iv) such Refinancing Indebtedness is in an aggregate amount that is equal
to or less than the aggregate amount then outstanding under the
Indebtedness being refunded, refinanced or extended, (v) such Refinancing
Indebtedness is Incurred by the same Person that initially Incurred the
Indebtedness being refunded, refinanced or extended, except that the
Company may Incur Refinancing Indebtedness to refund, refinance or extend
Indebtedness of any Restricted Subsidiary, and (vi) such Refinancing
Indebtedness is Incurred within 180 days after the Indebtedness being
refunded, refinanced or extended is so refunded, refinanced or extended;
provided that Refinancing Indebtedness shall include the amount of any
Indebtedness under the Existing Credit Facility which is Incurred within
180 days after the repayment of an equal amount of Indebtedness under the
Existing Credit Facility which was Incurred pursuant to the provisions of
the Senior Indenture described in the first paragraph under the caption
"Limitations on Additional Indebtedness."
"Registrar" has the meaning set forth in the "Registration,
Registration of Transfer and Exchange" section of the Senior Indenture.
"Restricted Investment" with respect to any Person means any
Investment (other than any Permitted Investment) by such Person in any (i)
of its Affiliates, (ii) executive officer or director of any Affiliate of
such Person, or (iii) other Person other than a Restricted Subsidiary which
is a Wholly Owned Subsidiary of the referent Person; provided, however,
that with respect to the Company and its Restricted Subsidiaries, any loan
or advance to an executive officer or director of the Company or a
Subsidiary will not constitute a Restricted Investment provided such loan
or advance is made in the ordinary course of business consistent with past
practices, and, if such loan or advance exceeds $100,000 (other than a
readily marketable mortgage loan not exceeding $500,000), such loan or
advance has been approved by the Board of Directors of the Company or a
disinterested committee thereof.
<PAGE> 44
"Restricted Payment" with respect to any Person means (i) the
declaration of any dividend or the making of any other payment or
distribution of cash, securities or other property or assets in respect of
such Person's Capital Stock (except that a dividend payable solely in
Capital Stock (other than Disqualified Stock) of such Person will not
constitute a Restricted Payment), (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of such
Person's Capital Stock or any other payment or distribution made in respect
thereof (other than payments or distributions excluded from the definitions
of Restricted Payment in clause (i) above), either directly or indirectly,
(iii) any Restricted Investment, and (iv) any principal payment,
redemption, repurchase, defeasance or other acquisition or retirement of
any Indebtedness of any Unrestricted Subsidiary or of Indebtedness of the
Company or its Restricted Subsidiaries which is subordinated in right of
payment to the Offered Debt Securities; provided, however, that with
respect to the Company and its Subsidiaries, Restricted Payments will not
include (a) any payment described in clause (i), (ii) or (iii) above made
to the Company or any of its Restricted Subsidiaries which are Wholly Owned
Subsidiaries by any of the Company's Subsidiaries, or (b) any proportionate
payment in respect of minority interests in Restricted Subsidiaries of the
Company to the extent that the payment constitutes a return of capital that
was not included in the Company's shareholders' equity or a dividend or
similar distribution not included in determining the Company's Consolidated
Net Income, or (c) any purchase, redemption, retirement or other
acquisition for value of Indebtedness of the Company or its Restricted
Subsidiaries which is subordinated to the Offered Debt Securities if the
consideration therefor consists solely of, or is the proceeds from,
Indebtedness subordinated to the Offered Debt Securities to the same extent
as the Indebtedness being purchased, redeemed, retired or otherwise
acquired, or (d) any purchase, redemption, retirement or other acquisition
for value of Indebtedness or Capital Stock of such Person or its
Subsidiaries if the consideration therefor consists solely of Capital Stock
(other than Disqualified Stock) of such Person, or the proceeds from such
sale of such Capital Stock.
"Restricted Subsidiary" means each of the Subsidiaries of the
Company which is not an Unrestricted Subsidiary.
"Security Register" has the meaning set forth in the
"Registration, Registration of Transfer and Exchange" section of the Senior
Indenture.
"Stated Maturity", when used with respect to any Offered Debt
Security or any installment of principal thereof or interest thereon, means
the date specified in such Offered Debt Security as the fixed date on which
the principal of such Offered Debt Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any (i) corporation of which at
least a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly beneficially owned by such Person, and
(ii) entity other than a corporation of which such Person directly or
indirectly beneficially owns at least a majority of the Common Equity.
<PAGE> 45
"Trustee" means the Person named as the Trustee in the first
paragraph of the Senior Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of the Senior Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee thereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Debt Securities
issued under the Senior Indenture shall mean only the Trustee with respect
to the Offered Debt Securities.
"Unrestricted Subsidiary" means each of the Subsidiaries of the
Company so designated by a Board Resolution. The Board of Directors of the
Company may designate an Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that (i) any such redesignation will be deemed to be
an Incurrence by the Company and its Restricted Subsidiaries of the
Indebtedness (if any) of such redesignated Subsidiary for purposes of the
provisions of the Senior Indenture described under the caption "Limitations
on Additional Indebtedness" as of the date of such redesignation and (ii)
immediately after giving effect to such redesignation and the Incurrence of
any such additional Indebtedness, the Company and its Restricted
Subsidiaries could Incur $1.00 of additional Indebtedness under the
Consolidated Fixed Charge Coverage Ratio set forth in the first paragraph
under the caption "Limitations on Additional Indebtedness." Subject to the
foregoing, the Board of Directors of the Company also may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary; provided that (i)
all previous Investments by the Company and its Restricted Subsidiaries in
such Restricted Subsidiary will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for
Restricted Payments under the provisions of the Senior Indenture described
under the caption "Limitations on Restricted Payments" and (ii) immediately
after giving effect to such designation and reduction of amounts available
for Restricted Payments under such provisions, the Company and its
Restricted Subsidiaries could Incur $1.00 of additional Indebtedness under
the Consolidated Fixed Charge Coverage Ratio set forth in the first
paragraph under the caption "Limitations on Additional Indebtedness." Any
such designation or redesignation by the Board of Directors of the Company
will be evidenced to the Trustee by the filing with the Trustee of a Board
Resolution giving effect to such designation or redesignation and an
Officers' Certificate certifying that such designation or redesignation
complied with the foregoing conditions and setting forth the underlying
calculations of such Officers' Certificate.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof, at any date, the number of years obtained
by dividing (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including, without limitation, payment
at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness or portion thereof.
<PAGE> 46
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary, of
which 100 percent of the Common Equity (except for directors' qualifying
shares or certain minority interests owned by other Persons solely due to
local law requirements that there be more than one stockholder, but which
interest is not in excess of what is required for such purpose) is owned
directly by such Person or through one or more other Wholly Owned
Subsidiaries of such Person, or (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns all of the Common Equity of
such entity.
Redemption
If and to the extent set forth in the applicable Prospectus
Supplement, the Company will have the right to redeem the Offered Debt
Securities, in whole or from time to time in part, after the date and at
the redemption prices set forth in the applicable Prospectus Supplement.
Events of Default
Except as may be described in the accompanying Prospectus
Supplement, an "Event of Default" will be defined in the Indenture for the
Offered Debt Securities as any of the following events (whatever the reason
for such Event of Default and whether it will be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
any order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the failure by the Company to pay interest on any
Offered Debt Security when the same becomes due and payable and
the continuance of any such failure for a period of 30 days;
(ii) the failure by the Company to pay the principal of
any Offered Debt Security when the same becomes due and payable at
maturity, upon acceleration or otherwise;
(iii) the failure by the Company to make any sinking fund
payment when the same becomes due and payable;
(iv) the failure by the Company to comply with any of its
agreements or covenants in, or provisions of, the Offered Debt
Security or the Indenture relating to the Offered Debt Security
(other than an agreement or covenant a default in whose performance
or whose breach is elsewhere is such Indentrue specifically dealt
with) and such failure continues for the period and after the
notice specified below;
(v) the acceleration of any indebtedness for borrowed
money or guarantees thereof (other than Non-Recourse Indebtedness
(as defined in the applicable Indenture)) of the Company or any of
its subsidiaries that has an outstanding principal amount of
$5,000,000 or more in the aggregate; provided that, in the event
any such acceleration is withdrawn or otherwise rescinded within a
period of five days after such acceleration by the holders of such
indebtedness, any Event of Default under the provisions of the
applicable Indenture described in this clause (v) relating to the
Offered Debt Securities will be deemed to be cured and any
acceleration under such Indenture will be deemed withdrawn or
rescinded;
<PAGE> 47
(vi) the failure by the Company or any of its subsidiaries
to make any principal or interest payment in respect of
indebtedness for borrowed money or guarantees thereof (other than
Non-Recourse Indebtedness) of the Company or any of its
subsidiaries with an outstanding aggregate principal amount of
$5,000,000 or more within five days of such principal or interest
payment becoming due and payable (after giving effect to any
applicable grace period set forth in the documents governing such
indebtedness);
(vii) a final judgment or judgments that exceed
$5,000,000 or more in the aggregate, for the payment of money,
having been entered by a court or courts of competent jurisdiction
against the Company or any of its subsidiaries and such judgment
or judgments are not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(viii) the Company or any Material Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors;
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary as debtor in an involuntary case,
(B) appoints a Custodian of the Company or any
Material Subsidiary or a Custodian for all or
substantially all of the property of the Company or any
Material Subsidiary, or
(C) orders the liquidation of the Company or any
Material Subsidiary,
and the order or decree remains unstayed and in effect for
60 days; or
(x) any other Event of Default provided in the
supplemental indenture under which the Offered Debt Securities are
issued or in the form of such Offered Debt Security.
<PAGE> 48
For purposes hereof, "Material Subsidiary" means any subsidiary of
the Company which accounted for three percent or more of the consolidated
tangible net assets or consolidated cash flow available for fixed charges
of the Company on a consolidated basis for the fiscal year ending
immediately prior to any default or Event of Default, all computed in
accordance with generally accepted accounting principles.
The Indenture relating to the Offered Debt Securities will provide
that the Trustee will not be deemed to know of a default unless a trust
officer has actual knowledge of such default or receives written notice of
such default with specific reference to such default.
The Indenture relating to the Offered Debt Securities will provide
that a default as described in sub-clause (iv) above is not an Event of
Default until the Trustee notifies the Company, or the holders of at least
25 percent in aggregate principal amount of the then outstanding Offered
Debt Securities under the Indenture, or such other percentage as may be
specified in the applicable Prospectus Supplement, notify the Company and
the Trustee, of the default and the Company does not cure the default
within 60 days after receipt of the notice, or for such other period as may
be specified in the applicable Prospectus Supplement. The notice must
specify the default, demand that it be remedied and state that the notice
is a "Notice of Default." If such a default is cured within the applicable
time period, it ceases.
Except to the extent otherwise stated in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
if an Event of Default (other than an Event of Default described in
sub-clause (viii) or (ix) above) shall have occurred and be continuing
under the Indenture, the Trustee (after receiving indemnities from the
holders of the Offered Debt Securities to its satisfaction) by notice to
the Company, or the holders of at least 25 percent in principal amount of
the Offered Debt Securities then outstanding, or such other percentage as
may be specified in the Prospectus Supplement, by notice to the Company and
the Trustee, may declare all of the Offered Debt Securities to be due and
payable immediately. Upon such declaration, the amounts due and payable on
the Offered Debt Securities, as determined pursuant to the provisions of
the "Acceleration" section of the Indenture, will be due and payable
immediately. Except to the extent otherwise stated in the Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
if an Event of Default described in sub-clause (viii) or (ix) above occurs,
the Offered Debt Securities will ipso facto become and be immediately due
and payable without any declaration, notice or other act on the part of the
Trustee and the Company or any holder. The holders of a majority in
principal amount of the Offered Debt Securities then outstanding, or such
other percentage as may be specified in the applicable Prospectus Supplement,
by written notice to the Trustee and the Company, may waive such Event of
Default, rescind an acceleration and its consequences (except an acceleration
due to nonpayment of principal of or interest on the Offered Debt Securities)
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived.
Except to the extent otherwise stated in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities will contain a
provision entitling the Trustee, subject to the duty of the Trustee during
a default to act with the required standard of care, to be indemnified by
the holders of Offered Debt Securities before proceeding to exercise any
<PAGE> 49
right or power under the Indenture at the request of such holders. Subject
to such provisions in the Indenture for the Offered Debt Securities for the
indemnification of the Trustee and certain other limitations, the holders
of a majority in principal amount of the Offered Debt Securities then
outstanding, or such other percentage as may be specified in the applicable
Prospectus Supplement, may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee. The Trustee may withhold from the
holders of the Offered Debt Securities notice of any continuing default or
Event of Default (except any default or Event of Default in payment of
principal or interest on the Offered Debt Securities) if the Trustee
determines that withholding such notice is in the holders' interest.
Except to the extent otherwise stated in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
no holder of Offered Debt Securities may institute any action against the
Company under the Indenture unless (i) such holder previously has given the
Trustee written notice of the default and continuance thereof, (ii) the
holders of not less than 25 percent in principal amount of the Offered Debt
Securities then outstanding, or such other percentage as may be specified
in the applicable Prospectus Supplement, have requested the Trustee to
institute such action and offered the Trustee reasonable indemnity, (iii)
the Trustee has not instituted such action within 60 days of the request
and (iv) the Trustee has not received direction inconsistent with such
written request from the holders of a majority in principal amount of the
Offered Debt Securities then outstanding, or such other amount as may be
specified in the applicable Prospectus Supplement. Notwithstanding any
other provision of the applicable Indenture, the right of any holder of
Offered Debt Securities to receive payment of principal and interest on
such Offered Debt Security on or after the respective due dates thereof,
or, subject to the provisions of the applicable Indenture described in the
preceding sentence, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of such holder.
The Indentures and the Offered Debt Securities will provide that
no director, officer or employee of the Company, as such, will have any
liability for any obligations of the Company under the Offered Debt
Securities or the Indentures. The Indentures and the Offered Debt
Securities will also each provide that each holder of the Offered Debt
Securities, by accepting the Offered Debt Securities, waives and releases
all such liability.
Except to the extent otherwise stated in the Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
the Company will be required to deliver to the Trustee an annual statement
regarding compliance with the Indenture, and include in such statement, if
any officer of the Company is aware of any default or Event of Default, a
statement specifying such default or Event of Default and what action the
Company is taking or proposes to take with respect thereto. In addition,
the Company will be required to deliver to the Trustee prompt written
notice of the occurrence of any default or Event of Default.
<PAGE> 50
Discharge, Defeasance and Covenant Defeasance
Except to the extent otherwise stated in the applicable Prospectus
Supplement, the Company may terminate certain of its obligations under the
Indenture with respect to the Offered Debt Securities including its
obligations to comply with the restrictive covenants described herein or in
the applicable Prospectus Supplement, on the terms and subject to the
conditions contained in the Indenture, by depositing in trust with the
Trustee money or obligations of, or guaranteed by, the United States
sufficient to pay the principal and interest, if any, on such Offered Debt
Securities to maturity (or earlier redemption).
The Prospectus Supplement sets forth the specific provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the
Offered Debt Securities.
Transfer and Exchange
A holder of an Offered Debt Security will be able to transfer or
exchange the Offered Debt Securities only in accordance with the provisions
of the Indenture. The registrar may require a holder, among other things,
to furnish appropriate endorsements and transfer documents, and to pay any
taxes and fees required by law or permitted by the Indenture.
Modifications to the Indentures
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that
the Company and the Trustee may enter into supplemental indentures without
the consent of the holders of Offered Debt Securities to, among other
things: (i) cure any ambiguity, defect or inconsistency in the Indenture
for the Offered Debt Securities; (ii) comply with the "Limitations on
Mergers and Consolidations" section set forth in the Indenture; (iii)
provide for uncertificated Offered Debt Securities in addition to
certificated Offered Debt Securities; (iv) make any change that does not
adversely affect the legal rights under the Indenture of holders of Offered
Debt Securities; (v) add to the covenants of the Company for the benefit of
the holders of Offered Debt Securities or to surrender any right or power
in the Indenture conferred upon the Company; (vi) add any additional Events
of Default for the benefit of the holders of Offered Debt Securities; (vii)
change or eliminate any of the provisions of the Indenture before Offered
Debt Securities are issued thereunder; (viii) establish the form or terms
of the Offered Debt Securities; (ix) evidence and provide for the
acceptance of appointment under the Indenture of a successor Trustee with
respect to the Offered Debt Securities and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts under the Indenture by more
than one Trustee; (x) supplement any of the provisions of the Indenture to
such extent as shall be necessary to permit or facilitate the defeasance or
discharge of Offered Debt Securities pursuant to the Indenture; or (xi)
comply with the qualification of the Indenture under the TIA.
<PAGE> 51
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the Indenture for the Offered Debt Securities also will contain
provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in principal amount of Offered Debt
Securities outstanding, or such other percentage as may be specified in the
applicable Prospectus Supplement, to add any provision to, change in any
manner or eliminate any of the provisions of the Indenture for the Offered
Debt Securities or modify in any manner the rights of the holders of the
Offered Debt Securities so affected; provided that the Company and the
Trustee may not, without the consent of the holder of each outstanding
Offered Debt Security affected thereby, do, among other things, any of the
following: (i) change the stated maturity of the principal of, or any
installment of principal of, or interest on, any Offered Debt Security, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the place of payment
where any Offered Debt Security or interest thereon is payable, or change
the coin or currency in which any Offered Debt Security or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the stated maturity thereof (or, in the case
of redemption or repayment at the option of the holder, on or after the
redemption date or repayment date); (ii) reduce the percentage in principal
amount of the outstanding Offered Debt Securities, the consent of whose
holders is required for any such amendment, or the consent of whose holders
is required for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences provided
for in the Indenture; or (iii) modify the ranking or priority of the
Offered Debt Securities in a manner adverse to the holders of Offered Debt
Securities. The Senior Subordinated Indenture and the Subordinated
Indenture may not be amended to alter the subordination of any outstanding
Senior Subordinated Debt Securities or Subordinated Debt Securities without
the consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
Except as provided in the applicable Prospectus Supplement, the
holders of at least a majority in principal amount of the then outstanding
Offered Debt Securities may on behalf of the holders of all Offered Debt
Securities, or such other amount as may be specified in the applicable
Prospectus Supplement, waive (i) insofar as the Offered Debt Securities are
concerned, compliance by the Company with certain covenants of the
Indenture and (ii) any past default under the Indenture with respect to the
Offered Debt Securities, except a default in the payment of the principal
of or interest on any Offered Debt Security or in respect of a provision
which under the Indenture cannot be modified or amended without the consent
of the holder of each outstanding Offered Debt Security affected.
Concerning the Trustee
IBJ Schroder Bank & Trust Company is to be Trustee under each of
the Indentures and has been appointed by the Company as paying agent and
registrar. IBJ Schroder Bank & Trust Company is the trustee under the
Indenture, dated as of June 21, 1993, relating to the Senior Notes, and it
or any other Trustee, or their respective affiliates, may from time to time
<PAGE> 52
have lender or other business arrangements with the Company. The Indenture
will contain certain limitations on the rights of the Trustee, should it or
its affiliates become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received in
respect of any such claim as security or otherwise. The Trustee and its
affiliates will be permitted to engage in other transactions; however, if
they acquire any conflicting interest, the conflict must be eliminated or
the Trustee must resign.
Governing Law
Unless otherwise specified in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities and the Offered
Debt Securities will be governed by the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities offered hereby (i)
through agents, (ii) through underwriters, (iii) through dealers, (iv)
directly to purchasers (through a specific bidding or auction process or
otherwise) or (v) through a combination of any such methods of sale. The
distribution of Debt Securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices.
Each Prospectus Supplement will set forth the terms of the
offering of the particular issuance of Debt Securities to which such
Prospectus Supplement relates, including (i) the name or names of any
underwriters or agents with whom the Company has entered into arrangements
with respect to the sale of such Debt Securities, (ii) the initial public
offering or purchase price of such Debt Securities, (iii) any underwriting
discounts, commissions and other items constituting underwriters'
compensation from the Company and any other discounts, concessions or
commissions allowed or reallowed or paid by any underwriters to other
dealers, (iv) any commissions paid to any agents, (v) the net proceeds to
the Company, and (vi) the securities exchange, if any, on which such Debt
Securities will be listed.
If an underwriter or underwriters are utilized in the sale of Debt
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms of the
transactions, including compensation of the underwriters and dealers, if
any, will be set forth in the applicable Prospectus Supplement, which will
be used by the underwriters to make resales of the Debt Securities.
If a dealer is utilized in the sale of Debt Securities, the
Company will sell such Debt Securities to the dealer, as principal. The
dealer may then resell such Debt Securities to the public at varying prices
to be determined by such dealer at the time of resale. The name of the
dealer and the terms of the transactions will be set forth in the
applicable Prospectus Supplement relating thereto.
<PAGE> 53
Offers to purchase the Debt Securities may be solicited directly
by the Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales, including
the terms of any bidding or auction process, if utilized, will be described
in the applicable Prospectus Supplement.
Agents, underwriters and dealers may be entitled under agreements
which may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the
Securities Act, and any such agents, underwriters or dealers, or their
affiliates may be customers of, engage in transactions with or perform
services for, the Company in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize agents, underwriters and other persons to solicit
offers by certain institutions to purchase Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
The Company may grant underwriters who participate in the
distribution of Debt Securities an option to purchase additional Debt
Securities to cover over-allotments, if any.
The place and date of delivery for Debt Securities in respect of
which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Debt Securities in respect of which this Prospectus is
being delivered will be a new issue of securities, will not have an
established trading market when issued and will not be listed on any
securities exchange. Any underwriters or agents to or through whom such
Debt Securities are sold by the Company for public offering and sale may
make a market in such Debt Securities, but such underwriters or agents will
not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the
trading market for any such Debt Securities.
LEGAL MATTERS
The legality of the Debt Securities will be passed upon for the
Company by Kaye, Scholer, Fierman, Hays & Handler, LLP, New York, New York.
Certain legal matters in connection with offerings made by this Prospectus
may be passed on for the underwriters, if any, by counsel named in the
Prospectus Supplement.
<PAGE> 54
EXPERTS
The consolidated financial statements of the Company and
subsidiaries incorporated by reference in this Prospectus and elsewhere in
the Registration Statement have been audited by Arthur Andersen LLP,
independent public accountants, to the extent and for the periods indicated
in their reports with respect thereto and have been so included in reliance
upon the authority of said firm as experts in accounting and auditing in
giving said reports.
With respect to the unaudited interim financial information for
the quarters ended March 31, June 30 and September 30, 1995 and 1994
incorporated by reference in this Prospectus and elsewhere in this
Registration Statement, Arthur Andersen LLP has applied limited procedures
in accordance with professional standards for a review of that information.
However, their separate reports thereon state that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on that information
should be restricted in light of the limited nature of the review
procedures applied. In addition, the accountants are not subject to the
liability provisions of Section 11 of the Securities Act for their reports
on the unaudited interim financial information because those reports are
not a "report" or a "part" of the registration statement prepared or
certified by the accountants within the meaning of Sections 7 and 11 of
the Securities Act.
<PAGE> 55
No dealer, salesman or other person U.S. HOME CORPORATION
has been authorized to give any information
or to make any representation not contained or
incorporated by reference in this Prospectus
and, if given or made, such information or
representation must not be relied upon as
having been authorized by the Company or by
the Underwriter. This Prospectus does not $100,000,000
constitute an offer to buy any of the
Securities offered hereby in any
jurisdiction to any person to whom it is
unlawful to make such offer or solicitation
in such jurisdiction. Neither the delivery
of this Prospectus nor any sale made
hereunder shall under any circumstances DEBT SECURITIES
create any implication that there has been
no change in the affairs of the Company
since the date hereof or that the other
information contained herein is correct
at any time subsequent to the date hereof.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain Information
by Reference 2
The Company 3 PROSPECTUS
Use of Proceeds 3
Description of Debt Securities 4
Plan of Distribution 33
Legal Matters 34
Experts 34
, 199
<PAGE>56
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission Registration Fee........... $ 34,483
Accounting Fees and Expenses.................................. $ 60,000 (1)
Blue Sky Fees and Expenses (including counsel fees)........... $ 20,000 (1)
Legal Fees and Expenses....................................... $ 150,000 (1)
Printing and Engraving Expenses............................... $ 200,000 (1)
Trustee Fees and Expenses..................................... $ 30,000 (1)
Rating Agency Fees............................................ $ 70,000 (1)
Miscellaneous................................................. $ 10,000 (1)
---------
Total.................................................... $ 574,483 (1)
=========
- ----------------
(1) Estimated.
Item 15. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), provides, as do the charters of many
other publicly held companies incorporated in the State of Delaware, that
the personal liability of directors of the Company to the Company is
eliminated to the maximum extent permitted by applicable law. The Certificate
of Incorporation provides for the indemnification of the directors, officers,
employees, and agents of the Company and its subsidiaries to the full
extent that may be permitted by applicable law from time to time. Certain
provisions of the Certificate of Incorporation protect the Company's
directors against personal liability for monetary damages resulting from
breaches of their fiduciary duty of care, except as set forth below. Under
the Delaware General Corporation Law, absent these provisions, directors
could be held liable for gross negligence in the performance of their duty
of care but not for simple negligence. The Company's directors remain
liable for breaches of their duty of loyalty to the Company and its
stockholders, as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and
transactions from which a director derives improper personal benefit. The
Certificate of Incorporation also does not absolve directors of liability
under section 174 of the Delaware General Corporation Law, which makes
directors personally liable for unlawful dividends or unlawful stock
repurchases or redemptions in certain circumstances and expressly sets
forth a negligence standard with respect to such liability.
<PAGE> 57
Under the Delaware General Corporation Law, directors, officers,
employees and other individuals may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits, or proceedings,
whether civil, criminal, administrative, or investigative (other than an
action by or in the right of the corporation -- a "derivative action") if
they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard of care is applicable in the case
of a derivative action, except that indemnification only extends to
expenses (including attorneys' fees) incurred in connection with defense or
settlement of such an action and the Delaware General Corporation Law
requires court approval before there can be any indemnification of expenses
where the person seeking indemnification has been found liable to the
Company.
The Certificate of Incorporation provides, among other things,
that each person who was or is made a party to, or is threatened to be made
a party to, or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding"),
by reason of the fact that he or she, or a person for whom he or she is the
legal representative, is or was a director or officer of the Company (or
was serving at the request of the Company as a director, officer, employee
or agent for another entity), will be indemnified and held harmless by the
Company to the fullest extent permitted by applicable law as it presently
exists or may be amended, against all expense, liability or loss (including
attorneys' fees), reasonably incurred by such person in connection
therewith. The Company will pay the expenses (including attorneys' fees)
incurred in defending any proceeding in advance of its final disposition.
However, the payment of expenses incurred by a director or officer in
advance of the final disposition of the proceeding will be made only upon
receipt by the Company of an undertaking by the director or officer to
repay all amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under the Certificate
of Incorporation or otherwise. The foregoing right of indemnification will
not be deemed exclusive of any other right to which those indemnified may
be entitled against the Company, and the Company may provide additional
rights to such persons.
If a claim for indemnification or payment of expenses is not paid
in full within 60 days after a written claim therefor has been received by
the Company, the claimant may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, will be entitled to be
paid the expense of prosecuting such claim. In any such action, the Company
will have the burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under applicable law.
<PAGE> 58
The rights conferred on any person under the Certificate of
Incorporation will not be exclusive of any other rights which such person
may have or acquire under any statute, provision of the Certificate of
Incorporation, the Company's Amended and Restated By-Laws, agreement, vote
of stockholders of the Company or disinterested directors or otherwise.
The Company's obligation, if any, to indemnify any person who was
or is serving at its request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity will be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, enterprise or nonprofit entity.
Subject to the availability of insurance at substantially similar
rates for similar coverage (as determined in the sole discretion of the
Company), the Company will maintain insurance at (i) the levels in effect
as of June 21, 1993 with respect to each director, officer, employee or
agent of the Company until June 21, 1996, or (ii) the levels in effect as
of the date of the expiration of the term, death, removal, retirement or
resignation of any such person for a period of three years after such
event, whichever level is greater, in either case, with respect to any
proceeding by reason of the fact that such person, or the person for whom
he or she is the legal representative, is or was a director or officer of
the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorney's fees)
reasonably incurred by such person at the Company's expense, to protect the
Company and any such person against any such liability, cost, payment or
expense; provided, however, that subject to the provisions described
herein, the Company will only be required to maintain insurance until the
earlier of the date which is (a) three years after the expiration of the
term, death, removal, retirement or resignation of any such person and (b)
June 21, 1999.
Any repeal or modification of the provisions described above will
not adversely affect any right or protection under the Certificate of
Incorporation of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
Under the Company's First Amended Consolidated Plan of
Reorganization, dated May 24, 1993, as modified (the "Plan"), and the
confirmation order relating thereto of the United States Bankruptcy Court
for the Southern District of New York, the obligations of the Company and
each of its affiliates to indemnify any person serving as one of its
directors, officers or employees as of or following April 15, 1991, by
reason of such person's past or future service in such a capacity, or as a
director, officer, or employee of another corporation, partnership, or
other legal entity, to the extent provided in the applicable certificate of
<PAGE> 59
incorporation, by-laws, or similar constituent documents or by statutory
law or written agreement of or with the Company or any of its affiliates,
were, except as provided below, deemed and treated as executory contracts
that were assumed by the Company or any of its affiliates pursuant to the
Plan and section 365 of the United States Bankruptcy Code, upon the
confirmation of the Plan. Accordingly, such indemnification obligations
survived and were unaffected by entry of the confirmation order with
respect to the Plan, irrespective of whether such indemnification is owed
for an act or event occurring before or after April 15, 1991.
The Company entered into indemnification agreements effective as
of June 21, 1993 with each of its directors and officers. These
indemnification agreements provide for, among other things, the (i)
indemnification by the Company of the indemnitees thereunder to the extent
described above and (ii) advancement of attorneys' fees and other expenses.
Accordingly, the Company will in certain circumstances be obligated to
indemnify its former directors and its directors and officers from and
after June 21, 1993, including as to matters arising out of service as
directors or officers of certain entities other than the Company or any of
its affiliates prior to June 21, 1993.
Certain of the Company's compensation and stock option plans provide
for the indemnification of certain of the Company's officers and directors in
connection with certain matters relating to such plans.
Item 16. Exhibits
(a) Exhibits
Exhibit
No. Description of Document
2.1 First Amended Consolidated Plan to Reorganization of U.S. Home
Corporation and certain of its affiliates dated April 1, 1993.
Incorporated by reference from exhibit 2.1 to U.S. Home
Corporation's Current Report on Form 8-K filed June 9, 1993.
2.2 Modification to First Amended Consolidated Plan of Reorganization
of U.S. Home Corporation and certain of its affiliates. Incorporated
by reference from exhibit 2.2 to U.S. Home Corporation's Current
Report on Form 8-K filed June 9, 1993.
2.3 First Amended Joint Plan of Reorganization of certain
affiliates of U.S. Home Corporation dated April 1, 1993.
Incorporated by reference from exhibit 2.3 to U.S. Home
Corporation's Current Report on Form 8-K filed June 9, 1993.
2.4 Findings of Fact, Conclusions of Law and Order Confirming
the First Amended Consolidated Plan of Reorganization of
U.S. Home Corporation and certain of its affiliates.
Incorporated by reference from exhibit 28.1 to U.S. Home
Corporation's Current Report on Form 8-K filed June 9, 1993.
2.5 Findings of Fact, Conclusions of Law and Order Confirming
the First Amended Joint Plan of Reorganization of certain
affiliates of U.S. Home Corporation. Incorporated by
reference from exhibit 28.2 to U.S. Home Corporation's
Current Report on Form 8-K filed June 9, 1993.
<PAGE>60
4.1 Form of Senior Indenture by and between U.S. Home
Corporation and IBJ Schroder Bank & Trust Company,
as trustee.
4.2 Form of Senior Subordinated Indenture by and between
U.S. Home Corporation and IBJ Schroder Bank & Trust
Company, as trustee.
4.3 Form of Subordinated Indenture by and between U.S. Home
Corporation and IBJ Schroder Bank & Trust Company, as trustee.
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP.
12 Statements re: Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP.
Included in such firm's opinion filed as Exhibit 5.1.
24 Power of Attorney. Included on the signature page at Page II-6.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee on Form T-1.
25.2 Statement of Eligibility under the Trust Indenture Act
of 1939 of a Corporation Designated to Act as Trustee on Form T-1.
25.3 Statement of Eligibility under the Trust Indenture
Act of 1939 of a Corporation Designated to Act as Trustee
on Form T-1.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of
1933, unless the information required to be
included in such post-effective amendment is
contained in a periodic report filed with or
furnished to the Securities and Exchange
Commission by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange
Act of 1934 and incorporated herein by
reference;
<PAGE> 61
(ii) To reflect in the Prospectus any
facts or events arising after the effective date
of the registration statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement, unless the
information required to be included in such
post-effective amendment is contained in a
periodic report filed with or furnished to the
Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 and
incorporated herein by reference;
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
registration statement or any material change to
such information in the Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
in Item 15 above, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
<PAGE> 62
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability
under the Securities Act of 1933, the information omitted
from the form of prospectus filed as a part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4), or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of section 310 of the Trust Indenture Act
("Act") in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
<PAGE> 63
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas on
January 31, 1996.
U.S. HOME CORPORATION
By: /s/ Robert J. Strudler
---------------------------
Robert J. Strudler
Chairman and Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes each of Robert J. Strudler, Isaac Heimbinder, Craig
M. Johnson, Chester P. Sadowski and Thomas A. Napoli, as attorney-in-fact,
to sign and file on his behalf, individually and in each capacity stated
below, any pre-effective or post-effective amendment hereto.
Signature Title Date
----------- ------- --------
/s/ Robert J. Strudler Chairman and Co-Chief January 31, 1996
- ----------------------- Executive Officer and
Robert J. Strudler Director
/s/ Isaac Heimbinder President, Co-Chief January 31, 1996
- ----------------------- Executive Officer, Chief
Isaac Heimbinder Operating Officer and
Director
/s/ Chester P. Sadowski Vice President -- January 31, 1996
- ------------------------ Controller and Chief
Chester P. Sadowski Accounting Officer
/s/ Thomas A. Napoli Vice President -- Finance January 31, 1996
- --------------------- and Chief Financial
Thomas A. Napoli Officer
/s/ Glen Adams Director January 31, 1996
- --------------------
Glen Adams
<PAGE> 64
/s/ Steven L. Gerard Director January 31, 1996
- ----------------------
Steven L. Gerard
Director
- -----------------------
Kenneth J. Hanau, Jr.
/s/ Malcolm T. Hopkins Director January 26, 1996
- -----------------------
Malcolm T. Hopkins
/s/ Jack L. McDonald Director January 31, 1996
- ---------------------
Jack L. McDonald
/s/ Charles A. McKee Director January 31, 1996
- -------------------------
Charles A. McKee
/s/ George A. Poole, Jr. Director January 26, 1996
- -------------------------
George A. Poole, Jr.
/s/ Herve Ripault Director January 27, 1996
- -------------------------
Herve Ripault
/s/ James W. Sight Director January 31, 1996
- -------------------------
James W. Sight
<PAGE> 65
INDEX OF EXHIBITS
Sequential
Exhibit Numbered
Number Page
- -------- ------------
4.1 Form of Senior Indenture by and between
U.S. Home Corporation and IBJ Schroder
Bank & Trust Company, as trustee. 66
4.2 Form of Senior Subordinated Indenture by
and between U.S. Home Corporation and
IBJ Schroder Bank & Trust Company, as trustee. 163
4.3 Form of Subordinated Indenture by and
between U.S. Home Corporation and
IBJ Schroder Bank & Trust Company, as trustee. 241
5.1 Opinion of Kaye, Scholer, Fierman,
Hays & Handler, LLP. 319
12 Statements re: Computation of Ratio of
Earnings to Fixed Charges. 321
23.1 Consent of Arthur Andersen LLP. 322
25.1 Statement of Eligibility under the Trust
Indenture Act of 1939 of a Corporation
Designated to Act as Trustee on Form T-1. 323
25.2 Statement of Eligibility under the Trust
Indenture Act of 1939 of a Corporation
Designated to Act as Trustee on Form T-1. 336
25.3 Statement of Eligibility under the Trust
Indenture Act of 1939 of a Corporation
Designated to Act as Trustee on Form T-1. 349
<PAGE> 66
EXHIBIT 4.1
FORM OF
SENIOR INDENTURE,
dated as of _______ __, 199_,
between
U.S. HOME CORPORATION
and
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
<PAGE> 67
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
-------- -----------------
310(a)(1).............................. 9.10
(a)(2)............................ 9.10
(a)(3)............................ N.A.
(a)(4)............................ N.A.
(b)............................... 9.08; 9.10
(c)............................... N.A.
311(a)................................. 9.11
(b)............................... 9.11
(c)............................... N.A.
312 (a)............................... 10.01; 10.02
(b)............................... 10.02; 14.03
(c)............................... 10.02
313(a)................................. 9.06
(b)(1)............................ 9.06
(b)(2)............................ 9.06
(c)............................... 9.06
(d)............................... 9.06
314(a)................................. 6.03
(b)............................... N.A.
(c)(1)............................ 14.04; 14.05
(c)(2)............................ 14.04; 14.05
(c)(3)............................ 14.05
(d)............................... N.A.
(e)............................... 14.05
(f)............................... N.A.
315(a)................................. 9.01
(b)............................... 9.05
(c)............................... 9.01
(d)............................... 9.01
(e)............................... 8.11
316(a)(last sentence).................. 8.05
(a)(1)(A)......................... 8.05
(a)(1)(B)......................... 8.04
(a)(2)............................ Not applicable
(b)............................... 8.07
<PAGE> 68
317(a)(1).............................. 8.08
(a)(2)............................ 8.09
(b)............................... 3.05
318(a)................................. 14.01
N.A. means not applicable
Note: This cross-reference table will not, for any
purpose, be deemed to be a part of this Indenture.
<PAGE> 69
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Rules of Construction 1
Section 1.02 Definitions 2
Acquisition Debt 2
Affiliate 2
Affiliate Transaction 2
Agent 2
Asset Sale 2
Asset Sale Offer Date 3
Asset Sale Offer Price 3
Bankruptcy Law 3
Board of Directors 3
Board Resolution 3
Business Day 3
Capital Stock 3
Capitalized Lease Obligations 3
Change of Control 3
Change of Control Offer 4
Change of Control Payment Date 4
Change of Control Price 4
Common Equity 4
Company 4
Company Request or Company Order 4
Consolidated Cash Flow Available
for Fixed Charges 4
Consolidated Fixed Charge Coverage
Ratio 5
Consolidated Income Tax Expense 5
Consolidated Interest Expense 5
Consolidated Interest Incurred 5
Consolidated Net Income 5
Consolidated Tangible Net Assets 6
Consolidated Tangible Net Worth 6
Corporate Trust Office of the Trustee 6
Covenant Defeasance 6
Custodian 6
Default 6
Defaulted Interest 6
<PAGE> 70
Defeasance 6
Defeasible Series 7
Depository 7
Disqualified Stock 7
Disqualified Stock Dividend 7
DTC 7
Event of Default 7
Excess Proceeds 7
Excess Proceeds Offer 7
Exchange Act 7
Existing Credit Facility 7
Existing Indebtedness 8
Fair Market Value 8
GAAP 8
Global Security 8
Hedging Obligations 8
Holder 8
Incur 8
Indebtedness 8
Indenture 9
Independent Financial Advisor 9
Intangible Assets 9
Interest Expense 10
Interest Incurred 10
Interest Payment Date 10
Investments 10
Issue Date 11
Legal Holiday 11
Lien 11
Material Subsidiary 11
Maturity 11
Net Proceeds 11
Net Worth Amount 12
Net Worth Offer 12
Net Worth Offer Date 12
Net Worth Offer Price 12
Non-Recourse Indebtedness 12
Officer 12
Officers' Certificate 12
Opinion of Counsel 12
Outstanding 12
<PAGE> 71
Paying Agent 13
Permitted Investment 13
Permitted Liens 14
Person 15
Place of Payment 15
Preferred Stock 15
Refinancing Indebtedness 15
Registrar 16
Regular Record Date 16
Restricted Investment 16
Restricted Payment 16
Restricted Subsidiary 17
SEC 17
Securities 17
Security Register 17
Special Record Date 17
Stated Maturity 17
Subsidiary 17
Successor 17
TIA 17
Trustee 17
Trust Officer 18
U.S. Government Obligations 18
Unrestricted Subsidiary 18
Weighted Average Life to Maturity 19
Wholly Owned Subsidiary 19
Section 1.03 Incorporation by Reference of TIA 19
ARTICLE 2 SECURITY FORMS 19
Section 2.01 Forms Generally 19
Section 2.02 Form of Legend for Global Securities 20
Section 2.03 Form of Trustee's Certificate of
Authentication 21
ARTICLE 3 THE SECURITIES 21
Section 3.01 Amount Unlimited; Issuable in Series 21
Section 3.02 Denominations 24
Section 3.03 Execution, Authentication, Delivery
and Dating 24
Section 3.04 Temporary Securities 26
Section 3.05 Registration, Registration of
Transfer and Exchange 26
Section 3.06 Mutilated, Destroyed, Lost and
Stolen Securities 30
Section 3.07 Payment of Interest; Interest Rights
Preserved 31
<PAGE> 72
Section 3.08 Persons Deemed Owners 32
Section 3.09 Cancellation 32
Section 3.10 Computation of Interest 33
ARTICLE 4 REDEMPTION 33
Section 4.01 Applicability of Article 33
Section 4.02 Election to Redeem; Notice to
Trustee 33
Section 4.03 Selection of Securities to Be
Redeemed 33
Section 4.04 Notices to Holders 34
Section 4.05 Effect of Notice of Redemption 34
Section 4.06 Deposit of Redemption Price 35
Section 4.07 Securities Redeemed in Part 35
Section 4.08 Optional Redemption 35
ARTICLE 5 SINKING FUNDS 36
Section 5.01 Applicability of Article 36
Section 5.02 Satisfaction of Sinking Fund
Payments with Securities 36
Section 5.03 Redemption of Securities for
Sinking Fund 36
ARTICLE 6 COVENANTS 38
Section 6.01 Payment of Securities 38
Section 6.02 Maintenance of Office or Agency 38
Section 6.03 SEC Reports; Financial Statements 39
Section 6.04 Money for Security Payments to Be
Held in Trust 39
Section 6.05 Compliance Certificate 41
Section 6.06 Corporate Existence, etc. 41
Section 6.07 Payment of Taxes and Other Claims 41
Section 6.08 Insurance 42
Section 6.09 Stay, Extension and Usury Laws 42
Section 6.10 Maintenance of Properties 42
Section 6.11 Disposition of Proceeds of Asset
Sales 42
Section 6.12 Limitations on Restricted Payments 46
Section 6.13 Limitations on Additional
Indebtedness 47
Section 6.14 Restrictions on Restricted
Subsidiary Indebtedness 48
Section 6.15 Limitations and Restrictions on
Capital Stock of Subsidiaries 48
Section 6.16 Change of Control 48
Section 6.17 Limitations on Transactions
With Affiliates 51
Section 6.18 Limitations on Liens 52
Section 6.19 Limitations on Restrictions on
Distributions from Restricted
Subsidiaries 52
Section 6.20 Maintenance of Consolidated
Tangible Net Worth 53
<PAGE> 73
ARTICLE 7 SUCCESSORS 56
Section 7.01 Limitations on Mergers and
Consolidations 56
Section 7.02 Successor Corporation Substituted 56
ARTICLE 8 DEFAULTS AND REMEDIES 57
Section 8.01 Events of Default 57
Section 8.02 Acceleration 59
Section 8.03 Other Remedies 60
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture
Provisions 60
Section 8.05 Control by Majority 60
Section 8.06 Limitations on Suits 61
Section 8.07 Rights of Holders to Receive Payment 61
Section 8.08 Collection Suit by Trustee 61
Section 8.09 Trustee May File Proofs of Claim 62
Section 8.10 Priorities 62
Section 8.11 Undertaking for Costs 62
Section 8.12 Restoration of Rights and Remedies 63
ARTICLE 9 TRUSTEE 63
Section 9.01 Duties of Trustee 63
Section 9.02 Rights of Trustee 64
Section 9.03 Individual Rights of Trustee 65
Section 9.04 Trustee's Disclaimer 65
Section 9.05 Notice Defaults 66
Section 9.06 Reports by Trustee to Holders 66
Section 9.07 Compensation and Indemnity 66
Section 9.08 Replacement of Trustee 67
Section 9.09 Successor Trustee by Merger, etc. 68
Section 9.10 Eligibility; Disqualification 68
Section 9.11 Preferential Collection of Claims
Against Company 69
ARTICLE 10 HOLDERS' LISTS 69
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders 69
Section 10.02 Preservation of Information 69
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE 70
Section 11.01 Company's Option to Effect
Defeasance or Covenant Defeasance 70
Section 11.02 Defeasance and Discharge 70
<PAGE> 74
Section 11.03 Covenant Defeasance 71
Section 11.04 Conditions to Defeasance or
Covenant Defeasance 71
Section 11.05 Deposited Money and U.S.
Government Obligations to
Be Held in Trust; Other
Miscellaneous Provisions 73
Section 11.06 Reinstatement 74
ARTICLE 12 SATISFACTION AND DISCHARGE 74
Section 12.01 Satisfaction and Discharge
of Indenture 74
Section 12.02 Application of Trust Money 75
ARTICLE 13 SUPPLEMENTAL INDENTURES 76
Section 13.01 Supplemental Indentures Without
Consent of Holders 76
Section 13.02 Supplemental Indentures With
Consent of Holders 77
Section 13.03 Compliance With TIA 79
Section 13.04 Revocation and Effect of Consents 79
Section 13.05 Notation on or Exchange of
Securities 80
Section 13.06 Trustee to Sign Amendments, etc. 80
ARTICLE 14 MISCELLANEOUS 80
Section 14.01 TIA Controls 80
Section 14.02 Notices 80
Section 14.03 Communication by Holders With
Other Holders 82
Section 14.04 Action by Securityholders 82
Section 14.05 Proof of Execution of Instruments
and Holding of Securities 83
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities 83
Section 14.07 Certificate and Opinion as to
Conditions Precedent 83
Section 14.08 Statements Required in Certificate
or Opinion 84
Section 14.09 Rules by Trustee and Agents 85
Section 14.10 No Recourse Against Others 85
Section 14.11 Governing Law 85
Section 14.12 No Adverse Interpretation of
Other Agreements 85
Section 14.13 Successors 85
Section 14.14 Severability 86
Section 14.15 Counterpart Originals 86
Section 14.16 Trustee as Paying Agent and
Registrar 86
Section 14.17 Table of Contents, Headings, etc. 86
Section 14.18 Benefits of Indenture 86
Section 14.19 Acceptance of Trust 86
<PAGE> 75
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES 86
Section 15.01 Purposes of Meetings 86
Section 15.02 Call of Meetings by Trustee 87
Section 15.03 Call of Meetings by Company or
Securityholders 87
Section 15.04 Person Entitled to Vote at Meeting 87
Section 15.05 Regulations for Meeting 88
<PAGE> 76
INDENTURE, dated as of _______ __, 199_, between U.S.
Home Corporation, a Delaware corporation, and IBJ Schroder Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises
and the acquisition of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Rules of Construction
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and
transactions.
Section 1.02 Definitions
Capitalized terms used herein will have the following
respective meanings when used herein:
<PAGE> 77
"Acquisition Debt" means Indebtedness of any Person
existing at the time such Person became a Subsidiary of the Company (or
such Person is merged into the Company or one of the Company's
Subsidiaries) or assumed in connection with the acquisition of assets from
any such Person (other than assets acquired in the ordinary course of
business of the Company and its Subsidiaries), including, without
limitation, Indebtedness Incurred in connection with, or in contemplation
of, such Person becoming a Subsidiary of the Company (but excluding
Indebtedness of such Person which is extinguished, retired or repaid in
connection with such Person becoming a Subsidiary of the Company).
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this Indenture, each executive
officer and director of the Company and each Restricted Subsidiary will be
an Affiliate of the Company. In addition, for purposes of this Indenture,
control of a Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the foregoing,
the term "Affiliate" will not include, with respect to the Company or any
Restricted Subsidiary which is a Wholly Owned Subsidiary of the Company,
any Restricted Subsidiary which is a Wholly Owned Subsidiary of the
Company.
"Affiliate Transaction" has the meaning set forth in
Section 6.17(a) hereof.
"Agent" means any Registrar or Paying Agent.
"Asset Sale" for any Person means the sale, lease,
conveyance or other disposition (including, without limitation, by merger,
consolidation or sale and leaseback transaction, and whether by operation
of law or otherwise) of any of that Person's assets (including, without
limitation, the sale or other disposition of Capital Stock of any
Subsidiary of such Person, whether by such Person or such Subsidiary),
whether owned on the Issue Date of Securities of any series or subsequently
acquired in one transaction or a series of related transactions, in which
such Person and/or its Subsidiaries receive cash and/or other consideration
(including, without limitation, the unconditional assumption of
Indebtedness of such Person and/or its Subsidiaries) having an aggregate
Fair Market Value of $5,000,000 or more as to such transaction or series of
related transactions; provided, however, (i) sales of homes and sales of
mortgages on homes in the ordinary course of business consistent with past
practices will not constitute Asset Sales, (ii) sales, leases, conveyances
or other dispositions, including, without limitation, exchanges or swaps,
of real estate or other assets in the ordinary course of business
consistent with past practices will not constitute Asset Sales, (iii)
sales, leases, sale-leasebacks or other dispositions of amenities and other
improvements at the Company's or its Subsidiaries' communities in the
ordinary course of business consistent with past practices will not
constitute Asset Sales, and (iv) transactions between the Company and any
of its Restricted Subsidiaries which are Wholly Owned Subsidiaries, or
among such Restricted Subsidiaries which are Wholly Owned Subsidiaries of
the Company will not constitute Asset Sales.
<PAGE> 78
"Asset Sale Offer Date" has the meaning set forth in
Section 6.11(c) hereof.
"Asset Sale Offer Price" has the meaning set forth in
Section 6.11(c) hereof.
"Bankruptcy Law" means title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of
debtors.
"Board of Directors" means the board of directors of a
Person or any authorized committee of the board of directors of such
Person.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
rights to purchase, warrants or options (whether or not currently
exercisable), participations, or other equivalents of or interests in
(however designated) the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests)
of such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means any
obligation of such Person to pay rent or other amounts under a lease that
is required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of such obligation will be the
capitalized amount thereof determined in accordance with GAAP.
"Change of Control" means any of the following: (i) the
sale, lease, conveyance or other disposition of all or substantially all of
the Company's assets as an entirety or substantially as an entirety to any
Person or group of Persons (within the meaning of Section 13(d)(3) of the
Exchange Act) in one or a series of transactions; provided that a
transaction where the holders of all classes of Common Equity of the
Company immediately prior to such transaction own, directly or indirectly,
50 percent or more of the aggregate voting power of all classes of Common
Equity of such Person or group immediately after such transaction will not
be a Change of Control, (ii) the acquisition by the Company and/or any of
its Subsidiaries of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company in one transaction or a series of
related transactions, (iii) the liquidation or dissolution of the Company;
provided that a liquidation or dissolution of the Company which is part of
a transaction or series of related transactions that does not constitute a
Change of Control under the "provided" clause of clause (i) above will not
constitute a Change of Control under this clause (iii) or (iv) any
<PAGE> 79
transaction or a series of related transactions (as a result of a tender
offer, merger, consolidation or otherwise) that results in, or that is in
connection with, (a) any Person, including, a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) acquiring beneficial ownership (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company or of any Person that possesses
beneficial ownership (as determined in accordance with Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50 percent or more of the
aggregate voting power of all classes of Common Equity of the Company or
(b) less than 50 percent (measured by the aggregate voting power of all
classes) of the Common Equity of the Company being registered under Section
12(b) or 12(g) of the Exchange Act.
"Change of Control Offer" has the meaning set forth in
Section 6.16(a) hereof.
"Change of Control Payment Date" has the meaning set
forth in Section 6.16(a) hereof.
"Change of Control Price" has the meaning set forth in
Section 6.16(a) hereof.
"Common Equity" of any Person means all Capital Stock of
such Person that is generally entitled (i) to vote in the election of
directors of such Person, or (ii) if such Person is not a corporation, to
vote or otherwise participate in the selection of the governing body,
partners, managers or others that will control the management and policies
of such Person.
"Company" means U.S. Home Corporation, a Delaware
corporation, and any successor thereof.
"Company Request or Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its President, its Senior Vice President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of
the Company means, for any period, the sum of the amounts for such period
of (i) Consolidated Net Income, plus (ii) Consolidated Income Tax Expense
(other than income tax expense (either positive or negative) attributable
to extraordinary and nonrecurring gains or losses on Asset Sales), plus
(iii) Consolidated Interest Expense, plus (iv) all depreciation, and
without duplication, amortization (including, without limitation,
previously capitalized interest amortized to cost of sales), plus (v) all
other noncash items reducing Consolidated Net Income for such period, minus
(vi) all other noncash items increasing Consolidated Net Income during such
period; all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in accordance with GAAP.
<PAGE> 80
"Consolidated Fixed Charge Coverage Ratio" of the Company
means, with respect to any determination date, the ratio of (i)
Consolidated Cash Flow Available for Fixed Charges of the Company for the
prior four full fiscal quarters for which financial results have been
reported immediately preceding the determination date, to (ii) the
aggregate Consolidated Interest Incurred of the Company for the prior four
fiscal quarters for which financial results have been reported immediately
preceding the determination date.
"Consolidated Income Tax Expense" of the Company for any
period means the income tax expense of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" of the Company for any
period means the Interest Expense of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Incurred" of the Company for any
period means the Interest Incurred of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of the Company for any period
means the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that there will be excluded from such net
income (to the extent otherwise included therein), without duplication: (i)
the net income (or loss) of any Person (other than a Restricted Subsidiary)
in which any Person (including, without limitation, an Unrestricted
Subsidiary) other than the Company has an ownership interest, except to the
extent that any such income has actually been received by the Company or
any Restricted Subsidiary in the form of dividends or similar distributions
during such period, (ii) except to the extent includible in the
Consolidated Net Income pursuant to the foregoing clause (i), the net
income (or loss) of any Person that accrued prior to the date that (a) such
Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (b) the assets of
such Person are acquired by the Company or any of its Restricted
Subsidiaries, (iii) the net income of any Restricted Subsidiary to the
extent that (but only so long as) the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of that income is
not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary during such period,
(iv) in the case of a successor to the Company by consolidation, merger or
transfer of its assets, any earnings of the successor prior to such merger,
consolidation or transfer of assets and (v) the gains (but not losses)
resulting from (a) the acquisition of securities issued by the Company or
extinguishment of Indebtedness of the Company, (b) Asset Sales and (c)
<PAGE> 81
other extraordinary items. Notwithstanding the foregoing, in calculating
Consolidated Net Income, the Company will be entitled to take into
consideration the tax benefits associated with any extraordinary loss, but
only to the extent such tax benefits are recognized by the Company.
Consolidated Net Income will exclude any noncash losses, whether or not
extraordinary, incurred in connection with the issuance of Capital Stock
(other than Disqualified Stock) in exchange for Indebtedness of the Company
or its Wholly Owned Subsidiaries which are Restricted Subsidiaries.
"Consolidated Tangible Net Assets" of the Company as of
any date means the total amount of assets of the Company and its Restricted
Subsidiaries (less applicable reserves) on a consolidated basis at the end
of the fiscal quarter immediately preceding such date, as determined in
accordance with GAAP, less: (i) Intangible Assets and (ii) appropriate
adjustments on account of minority interests of other Persons holding
equity investments in Restricted Subsidiaries, in the case of each of
clauses (i) and (ii) above as reflected on the consolidated balance sheet
of the Company and its Restricted Subsidiaries as of the end of the fiscal
quarter immediately preceding such date.
"Consolidated Tangible Net Worth" of the Company as of
any date means the stockholders' equity (including any Preferred Stock that
is classified as equity under GAAP, other than Disqualified Stock) of the
Company and its Restricted Subsidiaries on a consolidated basis at the end
of the fiscal quarter immediately preceding such date, as determined in
accordance with GAAP, less the amount of Intangible Assets reflected on the
consolidated balance sheet of the Company and its Restricted Subsidiaries
as of the end of the fiscal quarter immediately preceding such date.
"Corporate Trust Office of the Trustee" will be at the
address of the Trustee specified in Section 14.02 hereof or such other
address as the Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in
Section 11.03 hereof.
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or
after notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section
3.07 hereof.
"Defeasance" has the meaning set forth in Section 11.02
hereof.
"Defeasible Series" has the meaning set forth in Section
11.01 hereof.
<PAGE> 82
"Depository" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depository for such Securities as contemplated by
Section 3.01.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole
or in part, on or prior to the final Maturity date of the Securities of any
series; provided that any Capital Stock which would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the
right to require the Company to repurchase or redeem such Capital Stock
upon the occurrence of a change of control occurring prior to the final
Maturity of the Securities will not constitute Disqualified Stock if the
change of control provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions
contained in Section 6.16 hereof and such Capital Stock specifically
provides that the Company will not repurchase or redeem (or be required to
repurchase or redeem) any such Capital Stock pursuant to such provisions
prior to the Company's repurchase of Securities pursuant to Section 6.16
hereof.
"Disqualified Stock Dividend" of any Person means, for
any dividend payable with regard to Disqualified Stock issued by such
Person, the amount of such dividend multiplied by a fraction, the numerator
of which is one and the denominator of which is one minus the maximum
statutory combined federal, state and local income tax rate (expressed as a
decimal number between 1 and 0) then applicable to such Person.
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in Section
8.01(a) hereof.
"Excess Proceeds" has the meaning set forth in Section
6.11(a) hereof.
"Excess Proceeds Offer" has the meaning set forth in
Section 6.11(c) hereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Existing Credit Facility" means the Credit Agreement,
dated as of September 29, 1995, between the Company and the lenders named
therein and The First National Bank of Chicago, as Agent (together with the
documents related thereto (including, without limitation, any guaranty
agreements)), as such Facility may be amended, restated, supplemented or
otherwise modified from time to time, and includes any facility extending
the maturity of, increasing the total commitment of, or restructuring
<PAGE> 83
(including, without limitation, the inclusion of additional borrowers
thereunder that are Subsidiaries of the Company and whose obligations
thereunder are guaranteed by the Company) all or any portion of, the
Indebtedness under such Facility or any successor or replacement facilities
and includes any facility with one or more agents or lenders refinancing or
replacing all or any portion of the Indebtedness under such Facility or any
successor facilities.
"Existing Indebtedness" means all of the Indebtedness of
the Company and its Subsidiaries that is outstanding on the Issue Date of
Securities of any series.
"Fair Market Value" with respect to any asset or property
means the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect on
the Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depository for such Securities or a
nominee thereof.
"Hedging Obligations" of any Person means the obligations
of such Person pursuant to any interest rate swap agreement, foreign
currency exchange agreement, interest rate collar agreement, option or
futures contract or other similar agreement or arrangement relating to
interest rates or foreign exchange rates.
"Holder" means a Person in whose name a Security is
registered.
"Incur" means to, directly or indirectly, create, incur,
assume, guaranty, extend the maturity of, or otherwise become liable with
respect to any Indebtedness.
"Indebtedness" of any Person at any date means, without
duplication, (i) all indebtedness of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit or
other similar instruments (or reimbursement obligations with respect
<PAGE> 84
thereto), other than standby letters of credit issued for the benefit of,
or surety and performance bonds issued by, such Person in the ordinary
course of business, (iv) all obligations of such Person with respect to
Hedging Obligations (other than those that fix or cap the interest rate on
variable rate indebtedness otherwise permitted by this Indenture or that
fix the exchange rate in connection with indebtedness denominated in a
foreign currency and otherwise permitted by this Indenture and other than
the purchase of mortgage commitments in the ordinary course of business),
(v) all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, including, without limitation, all
conditional sale obligations of such Person and all obligations under any
title retention agreement (except trade payables and accrued expenses
incurred in the ordinary course of business), (vi) all Capitalized Lease
Obligations of such Person, (vii) all indebtedness of others secured by a
Lien on any asset of such Person, whether or not such indebtedness is
assumed by such Person, (viii) all indebtedness of others guaranteed by, or
otherwise the liability of, such Person to the extent of such guaranty or
liability, and (ix) all Disqualified Stock issued by such Person (the
amount of indebtedness represented by any Disqualified Stock will equal the
greater of the voluntary or involuntary liquidation preference plus accrued
and unpaid dividends). The amount of indebtedness of any Person at any date
will be (a) the outstanding balance at such date of all unconditional
obligations as described above, (b) the maximum liability of such Person
for any contingent obligations under clause (v) above and (c) in the case
of clause (vii) (if the indebtedness referred to therein is not assumed by
such Person), the lesser of the (A) Fair Market Value of all assets subject
to a Lien securing the indebtedness of others on the date that the Lien
attaches and (B) amount of the indebtedness secured.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the TIA that are deemed to
be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
3.01 hereof.
"Independent Financial Advisor" means an accounting,
appraisal or investment banking firm of nationally recognized standing that
is, in the reasonable judgment of the Company's Board of Directors, (i)
qualified to perform the task for which it has been engaged, and (ii)
disinterested and independent with respect to the Company, all of its
Subsidiaries, and each Affiliate of the Company and/or its Subsidiaries
that is involved in the Affiliate Transaction with respect to which such
firm has been engaged.
<PAGE> 85
"Intangible Assets" of the Company means all unamortized
debt discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, write-ups of assets
over their carrying value at the end of the last fiscal quarter ended prior
to the Issue Date of the Securities of any series or the date of
acquisition, if acquired subsequent thereto, and all other items which
would be treated as intangibles on the consolidated balance sheet of the
Company and its Restricted Subsidiaries prepared in accordance with GAAP.
"Interest Expense" of any Person for any period means,
without duplication, the aggregate amount of (i) interest which, in
conformity with GAAP, would be set opposite the caption "interest expense"
or any like caption on an income statement for such Person (including,
without limitation, imputed interest included on Capitalized Lease
Obligations, all commissions, discounts and other fees and charges owed
with respect to letters of credit securing financial obligations and
bankers' acceptance financing, the net costs associated with Hedging
Obligations, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of
discount or premium, if any, and all other noncash interest expense other
than interest and other charges amortized to cost of sales) and includes,
with respect to the Company and its Restricted Subsidiaries, without
duplication (including duplication of the foregoing items), all interest
included as a component of cost of sales for such period, and (ii) the
amount of Disqualified Stock Dividends recognized by the Company on any
Disqualified Stock whether or not paid during such period.
"Interest Incurred" of any Person for any period means,
without duplication, the aggregate amount of (i) interest which, in
conformity with GAAP, would be set opposite the caption "interest expense"
or any like caption on an income statement for such Person (including,
without limitation, imputed interest included on Capitalized Lease
Obligations, all commissions, discounts and other fees and charges owed
with respect to letters of credit securing financial obligations and
bankers' acceptance financing, the net costs associated with Hedging
Obligations, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of
discount or premium, if any, and all other noncash interest expense other
than interest and other charges amortized to cost of sales) and includes,
with respect to the Company and its Restricted Subsidiaries, without
duplication (including duplication of the foregoing items), all capitalized
interest for such period, all interest attributable to discontinued
operations for such period to the extent not set forth on the income
statement under the caption "interest expense" or any like caption, and all
interest actually paid by the Company or a Restricted Subsidiary under any
guaranty of Indebtedness (including, without limitation, a guaranty of
principal, interest or any combination thereof) of any other Person during
such period and (ii) the amount of Disqualified Stock Dividends recognized
by the Company on any Disqualified Stock whether or not declared during
such period.
<PAGE> 86
"Interest Payment Date", when used with respect to a
Security of any series, means the Stated Maturity of an installment of
interest on such Security.
"Investments" of any Person means (i) all investments by
such Person in any other Person in the form of loans, advances or capital
contributions, (ii) all guaranties of Indebtedness or other obligations of
any other Person by such Person, (iii) all purchases (or other acquisitions
for consideration) by such Person of Indebtedness, Capital Stock or other
securities of any other Person and (iv) all other items that would be
classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person determined in accordance with GAAP.
"Issue Date" means the date of original issuance of the
Securities of each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which
banking institutions in New York, New York or at a Place of Payment are
authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a Place of Payment, payment
shall be made at that place on the next succeeding day that is not a Legal
Holiday.
"Lien" means with respect to any asset, any mortgage,
lien, pledge, charge, security interest or other similar encumbrance of any
kind upon or in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including, without limitation,
any conditional sale or other title retention agreement, and any lease in
the nature thereof, any option or other agreement to sell, and any filing
of, or agreement to give, any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Material Subsidiary" means any Subsidiary of the Company
which accounted for three percent or more of the Consolidated Tangible Net
Assets or Consolidated Cash Flow Available for Fixed Charges of the Company
on a consolidated basis for the fiscal year ending immediately prior to any
Default or Event of Default.
"Maturity", when used with respect to a Security of any
series, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Net Proceeds" means cash (in U.S. dollars or freely
convertible into U.S. dollars) received by the Company or any Restricted
Subsidiary from an Asset Sale net of (i) (a) all brokerage commissions,
investment banking fees and all other fees and expenses (including, without
limitation, fees and expenses of counsel and investment bankers) related to
<PAGE> 87
such Asset Sale, (b) provisions for all income and other taxes measured by
or resulting from such Asset Sale, (c) payments made to retire Indebtedness
where payment of such Indebtedness is required in connection with such
Asset Sale, (d) amounts required to be paid to any Person (other than the
Company or a Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (e) appropriate amounts to be provided
by the Company or any Restricted Subsidiary thereof, as the case may be, as
a reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary
thereof, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee, and (ii)
all noncash consideration received by the Company or any of its Restricted
Subsidiaries from such Asset Sale upon the liquidation or conversion of
such consideration into cash, without duplication, net of all items
enumerated in subclauses (a) through (e) of clause (i) hereof.
"Net Worth Amount" has the meaning set forth in Section
6.20(a) hereof.
"Net Worth Offer" has the meaning set forth in Section
6.20(a) hereof.
"Net Worth Offer Date" has the meaning set forth in
Section 6.20(a) hereof.
"Net Worth Offer Price" has the meaning set forth in
Section 6.20(a) hereof.
"Non-Recourse Indebtedness" with respect to any Person
means Indebtedness of such Person for which (i) the sole legal recourse for
collection of principal and interest on such Indebtedness is against the
specific property identified in the instruments evidencing or securing such
Indebtedness and (ii) no other assets of such Person may be realized upon
in collection of principal or interest on such Indebtedness.
"Officer" means the Chairman of the Board, the President,
the Senior Vice President, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President
of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or
Co-Chief Executive Officer), Chief Operating Officer, Chief Financial
Officer or Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
<PAGE> 88
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities as to which the Defeasance has been
effected pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities has
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any interest on any Securities of any series.
"Permitted Investment" of any Person means any Investment
of such Person in (i) direct obligations of the United States or any agency
thereof or obligations guaranteed by the United States or any agency
thereof, in each case maturing within 180 days of the date of acquisition
thereof, (ii) certificates of deposit maturing within 180 days of the date
of acquisition thereof issued by a bank, trust company or savings and loan
association which is organized under the laws of the United States or any
<PAGE> 89
state thereof having capital, surplus and undivided profits aggregating in
excess of $250 million and a Keefe Bank Watch Rating of C or better (or a
similar rating by any successor thereof), (iii) certificates of deposit
maturing within 180 days of the date of acquisition thereof issued by a
bank, trust company or savings and loan association organized under the
laws of the United States or any state thereof other than banks, trust
companies or savings and loan associations satisfying the criteria in (ii)
above; provided that the aggregate amount of all certificates of deposit
issued to the Company at any one time by such bank, trust company or
savings and loan association will not exceed $100,000, (iv) commercial
paper given the highest rating by two established national credit rating
agencies and maturing not more than 180 days from the date of the
acquisition thereof, (v) repurchase agreements or money-market accounts
which are fully secured by direct obligations of the United States or any
agency thereof and (vi) in the case of the Company and its Subsidiaries,
any receivables or loans taken by the Company or a Subsidiary in connection
with the sale of any asset otherwise permitted by this Indenture.
"Permitted Liens" means (i) Liens for taxes, assessments
or governmental charges or claims that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to
which appropriate reserves have been established or other provisions have
been made in accordance with GAAP, (ii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other Liens imposed by law and arising in the ordinary
course of business and with respect to amounts that, to the extent
applicable, either (a) are not yet delinquent or (b) are being contested in
good faith by appropriate proceedings and as to which appropriate reserves
have been established or other provisions have been made in accordance with
GAAP, (iii) Liens (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, (iv) Liens
incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, progress payments,
government contracts and other obligations of like nature (exclusive of
obligations for the payment of borrowed money), in each case incurred in
the ordinary course of business of the Company and its Subsidiaries, (v)
attachment or judgment Liens not giving rise to a Default or an Event of
Default and which are being contested in good faith by appropriate
proceedings, (vi) easements, rights-of-way, restrictions and other similar
charges or encumbrances not materially interfering with the ordinary course
of business of the Company and its Subsidiaries, (vii) zoning restrictions,
licenses, restrictions on the use of real property or minor irregularities
in title thereto, which do not materially impair the use of such real
property in the ordinary course of business of the Company and its
Subsidiaries or the value of such real property for the purpose of such
business, (viii) leases or subleases granted to others not materially
interfering with the ordinary course of business of the Company and its
Subsidiaries, (ix) purchase money mortgages (including, without limitation,
Capitalized Lease Obligations and purchase money security interests), (x)
<PAGE> 90
Liens securing Refinancing Indebtedness; provided that such Liens only
extend to assets which are similar to the type of assets securing the
Indebtedness being refinanced and such refinanced Indebtedness was
previously secured by such similar assets, (xi) Liens securing Indebtedness
of the Company and its Restricted Subsidiaries; provided that the aggregate
amount of Indebtedness secured by Liens (other than Non-Recourse
Indebtedness secured by Liens) will not exceed 40 percent of Consolidated
Tangible Net Assets, (xii) any interest in or title of a lessor to property
subject to any Capitalized Lease Obligations incurred in compliance with
the provisions of this Indenture, (xiii) Liens existing on the Issue Date
for Securities of any series, including, without limitation, Liens securing
Existing Indebtedness, (xiv) any option, contract or other agreement to
sell an asset; provided such sale is not otherwise prohibited under this
Indenture, (xv) Liens securing Non-Recourse Indebtedness of the Company or
a Restricted Subsidiary thereof, (xvi) Liens on property or assets of any
Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary
owing to the Company or one or more Restricted Subsidiaries, (xvii) Liens
securing Indebtedness of an Unrestricted Subsidiary, (xviii) any right of a
lender or lenders to which the Company or a Restricted Subsidiary may be
indebted to offset against, or appropriate and apply to the payment of,
such Indebtedness any and all balances, credits, deposits, accounts or
monies of the Company or a Restricted Subsidiary with or held by such
lender or lenders and (xix) any pledge or deposit of cash or property in
conjunction with obtaining surety and performance bonds and letters of
credit required to engage in constructing on-site and off-site improvements
required by municipalities or other governmental authorities in the
ordinary course of business of the Company, by the Company or any
Restricted Subsidiary.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the principal of
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01 hereof.
"Preferred Stock" of any Person means all Capital Stock
of such Person which has a preference in liquidation or with respect to the
payment of dividends.
<PAGE> 91
"Refinancing Indebtedness" means Indebtedness that
refunds, refinances or extends any Existing Indebtedness or other
Indebtedness permitted to be Incurred by the Company or its Restricted
Subsidiaries pursuant to the terms of this Indenture, but only to the
extent that (i) the Refinancing Indebtedness is subordinated to the
Securities of any series to the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being refunded, refinanced or extended, or (b) after the
maturity date of the Securities of such series, (iii) the portion, if any,
of the Refinancing Indebtedness that is scheduled to mature on or prior to
the Maturity date of the Securities of such series has a Weighted Average
Life to Maturity at the time such Refinancing Indebtedness is Incurred that
is equal to or greater than the Weighted Average Life to Maturity of the
portion of the Indebtedness being refunded, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the Securities of
such series, (iv) such Refinancing Indebtedness is in an aggregate amount
that is equal to or less than the aggregate amount then outstanding under
the Indebtedness being refunded, refinanced or extended, (v) such
Refinancing Indebtedness is Incurred by the same Person that initially
Incurred the Indebtedness being refunded, refinanced or extended, except
that the Company may Incur Refinancing Indebtedness to refund, refinance or
extend Indebtedness of any Restricted Subsidiary and (vi) such Refinancing
Indebtedness is Incurred within 180 days after the Indebtedness being
refunded, refinanced or extended is so refunded, refinanced or extended;
provided that Refinancing Indebtedness shall include the amount of any
Indebtedness under the Existing Credit Facility which is Incurred within
180 days after the repayment of an equal amount of Indebtedness under the
Existing Credit Facility which was Incurred pursuant to Section 6.13(a)
hereof.
"Registrar" has the meaning set forth in Section 3.05
hereof.
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"Restricted Investment" with respect to any Person means
any Investment (other than any Permitted Investment) by such Person in any
(i) of its Affiliates, (ii) executive officer or director of any Affiliate
of such Person, or (iii) other Person other than a Restricted Subsidiary
which is a Wholly Owned Subsidiary of the referent Person; provided,
however, that with respect to the Company and its Restricted Subsidiaries,
any loan or advance to an executive officer or director of the Company or a
Subsidiary will not constitute a Restricted Investment provided such loan
or advance is made in the ordinary course of business consistent with past
practices, and, if such loan or advance exceeds $100,000 (other than a
readily marketable mortgage loan not exceeding $500,000), such loan or
advance has been approved by the Board of Directors of the Company or a
disinterested committee thereof.
<PAGE> 92
"Restricted Payment" with respect to any Person means (i)
the declaration of any dividend or the making of any other payment or
distribution of cash, securities or other property or assets in respect of
such Person's Capital Stock (except that a dividend payable solely in
Capital Stock (other than Disqualified Stock) of such Person will not
constitute a Restricted Payment), (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of such
Person's Capital Stock or any other payment or distribution made in respect
thereof (other than payments or distributions excluded from the definitions
of Restricted Payment in clause (i) above), either directly or indirectly,
(iii) any Restricted Investment and (iv) any principal payment, redemption,
repurchase, defeasances or other acquisition or retirement of any
Indebtedness of any Unrestricted Subsidiary or of Indebtedness of the
Company or its Restricted Subsidiaries which is subordinated in right of
payment to the Securities of any series; provided, however, that with
respect to the Company and its Subsidiaries, Restricted Payments will not
include (a) any payment described in clause (i), (ii) or (iii) above made
to the Company or any of its Restricted Subsidiaries which are Wholly Owned
Subsidiaries by any of the Company's Subsidiaries, or (b) any proportionate
payment in respect of minority interests in Restricted Subsidiaries of the
Company to the extent that the payment constitutes a return of capital that
was not included in the Company's shareholders' equity or a dividend or
similar distribution not included in determining the Company's Consolidated
Net Income, or (c) any purchase, redemption, retirement or other
acquisition for value of Indebtedness of the Company or its Restricted
Subsidiaries which is subordinated to the Offered Debt Securities if the
consideration therefor consists solely of, or is the proceeds from,
Indebtedness subordinated to the Offered Debt Securities to the same extent
as the Indebtedness being purchased, redeemed, retired or otherwise
acquired, or (d) any purchase, redemption, retirement or other acquisition
for value of Indebtedness or Capital Stock of such Person or its
Subsidiaries if the consideration therefor consists solely of Capital Stock
(other than Disqualified Stock) of such Person, or the proceeds from such
sale of such Capital Stock.
"Restricted Subsidiary" means each of the Subsidiaries of
the Company which is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission, and
any successor thereto.
"Securities" has the meaning set forth in the first
recital of this Indenture and more particularly means any securities of any
series authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section
3.05 hereof.
"Special Record Date" for the payment of any Defaulted
Interest on any Security means a date fixed by the Trustee pursuant to
Section 3.07 hereof.
<PAGE> 93
"Stated Maturity", when used with respect to any Security
of any series or any installment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of
which at least a majority of the aggregate voting power of all classes of
the Common Equity is directly or indirectly beneficially owned by such
Person, and (ii) any entity other than a corporation of which such Person
directly or indirectly beneficially owns at least a majority of the Common
Equity.
"Successor" has the meaning set forth in Section 7.01(a)
hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of the Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to the Securities of
that series.
"Trust Officer" means any Senior Vice President, Vice
President, Assistant Vice President, Assistant Secretary or Assistant
Treasurer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"U.S. Government Obligations" means (i) any security that
is (a) a direct obligation of the United States for the payment of which
full faith and credit of the United States is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
<PAGE> 94
"Unrestricted Subsidiary" means each of the Subsidiaries
of the Company so designated by a Board Resolution. The Board of Directors
of the Company may designate an Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that (i) any such redesignation will be deemed to be
an Incurrence by the Company and its Restricted Subsidiaries of the
Indebtedness (if any) of such redesignated Subsidiary for purposes of the
covenant set forth in Section 6.13 hereof as of the date of such
redesignation and (ii) immediately after giving effect to such
redesignation and the Incurrence of any such additional Indebtedness, the
Company and its Restricted Subsidiaries could Incur $1.00 of additional
Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained
in the covenant set forth in Section 6.13(a) hereof. Subject to the
foregoing, the Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary; provided that (i)
all previous Investments by the Company and its Restricted Subsidiaries in
such Restricted Subsidiary will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for
Restricted Payments under the covenant set forth in Section 6.12 hereof and
(ii) immediately after giving effect to such designation and reduction of
amounts available for Restricted Payments under the covenant set forth in
Section 6.12 hereof, the Company and its Restricted Subsidiaries could
Incur $1.00 of additional Indebtedness under the Consolidated Fixed Charge
Coverage Ratio contained in the covenant set forth in Section 6.13(a)
hereof. Any such designation or redesignation by the Board of Directors of
the Company will be evidenced to the Trustee by the filing with the Trustee
of a Board Resolution giving effect to such designation or redesignation
and an Officers' Certificate certifying that such designation or
redesignation complied with the foregoing conditions and setting forth the
underlying calculations of such Officers' Certificate.
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness or portion thereof, at any date, the number of years
obtained by dividing (i) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including, without
limitation, payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment by (ii) the then
outstanding principal amount of such Indebtedness or portion thereof.
"Wholly Owned Subsidiary" of any Person means (i) a
Subsidiary, of which 100 percent of the Common Equity (except for
directors' qualifying shares or certain minority interests owned by other
Persons solely due to local law requirements that there be more than one
stockholder, but which interest is not in excess of what is required for
such purpose) is owned directly by such Person or through one or more other
Wholly Owned Subsidiaries of such Person, or (ii) any entity other than a
corporation in which such Person, directly or indirectly, owns all of the
Common Equity of such entity.
Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
<PAGE> 95
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by or pursuant to this Indenture or
any indenture supplemental hereto and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the Officers
executing such Security as evidenced by their execution of such Security.
If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy thereof shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 hereof for the authentication and delivery of such Securities.
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a copy thereof at the time of issuance of each
Security of such series, but such Board Resolution shall be delivered at or
prior to the time of issuance of the first Security of such series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any
other manner, all as determined by the Officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF TRANSFER
OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED ABOVE.
<PAGE> 96
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[Name of Trustee]
---------------------------
As Trustee
By..........................
Authorized Officer
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03 hereof, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series the
following:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
<PAGE> 97
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 4.07 or 13.05 hereof and except for any
Securities which, pursuant to Section 3.03 hereof, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which
such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Security on any Interest
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated
if other than on the basis of actual days elapsed over a 365 or
366-day year;
(6) the place or places, if any, other than or in
addition to New York, New York, where the principal of and
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the same series may be surrendered for
exchange and, if different from the location specified in Section
14.02 hereof, the place or places where notices or demands to or
upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within, the price or prices at
and the terms and conditions upon, which Securities of the series
may be redeemed or purchased, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or
repurchase Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series
shall be redeemed or repurchased, in whole or in part, pursuant to
such obligation;
<PAGE> 98
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and interest on any Securities of the
series shall be payable if other than the currency of the United
States and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of
"Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities of
the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount of the Securities
of any series, the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration
of the Maturity thereof;
(14) if applicable, that the Securities of the series
shall be defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depository or
Depositories for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.05 hereof in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of,
a Person other than the Depository for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(17) if other than the Trustee, the identity of each
Paying Agent and Registrar for the Securities of the series; and
<PAGE> 99
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 3.03 hereof) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 3.01 hereof, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
<PAGE> 100
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 2.01 hereof, that such form or forms have been established
in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.01
hereof, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities.
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.01 hereof or
the Company Order and Opinion of Counsel otherwise required pursuant to
such preceding paragraph at the time of issuance of each Security of such
series, but such documents shall be delivered at or prior to the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of a
Trust Officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
<PAGE> 101
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 hereof together with a written
statement (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the
Securities of each series including any Global Security (the "Security
Register") in an office or agency of the Company in a Place of Payment (the
"Registrar") where, subject to Section 3.05(c) hereof and such reasonable
regulations as the Company may prescribe, Securities may be presented for
registration of transfer or for exchange. The Company may appoint one or
more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act as Registrar.
<PAGE> 102
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to
issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) In case the Company, pursuant to Article 7 hereof,
will be consolidated or merged with or into any other Person or will
convey, transfer or lease substantially all of its properties and assets to
any Person, and the Successor resulting from such consolidation, or
surviving such merger, or into which the Company will have been merged, or
the Person which will have received a conveyance, transfer or lease as
aforesaid, will have executed an indenture supplemental hereto with the
<PAGE> 103
Trustee pursuant to Article 7 hereof, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer or
lease may, from time to time, at the request of the Successor, be exchanged
for other Securities executed in the name of the Successor with such
changes in phraseology and form as may be appropriate, but otherwise in
substance and of like tenor as the Securities surrendered for such exchange
and of like principal amount; and the Trustee, upon receipt of an Officers'
Certificate from the Successor, will authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor, at the option of the Holders but without expense to them, will
provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any
series are to be issued in whole or in part in the form of one or more
Global Securities, authenticate and deliver one or more Global Securities
that will (i) represent and will be denominated in an amount equal to the
aggregate outstanding principal amount of the Securities to be represented
by such Global Security or Securities, (ii) be registered in the name of
the Depository for such Global Security or Securities or the nominee of
such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
<PAGE> 104
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security will be
canceled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
<PAGE> 105
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
<PAGE> 106
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 6.02 hereof.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
defaulted interest and, if applicable, interest on such defaulted interest
(to the extent lawful) at the rate specified in the Securities of such
series (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at
its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money (except as otherwise
specified pursuant to Section 3.01 hereof for the Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Securities
of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
<PAGE> 107
If notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor have been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of the securities
exchange on which such Securities may be listed, if any, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
The provisions of this Section 3.07 may be applicable
to any series of Securities pursuant to Section 3.01 hereof
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 3.01 hereof).
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, registration of
transfer or exchange or for credit against any current or future sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
<PAGE> 108
by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the
same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
ARTICLE 4
REDEMPTION
Section 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 30 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding
Securities of a series are to be redeemed, the Trustee will select the
Securities of such series to be redeemed pro rata or by lot or by any other
method the Trustee deems fair and appropriate but only in integral
multiples of $1,000. The particular Securities of a series to be redeemed
will be selected, unless otherwise provided herein, not less than 20 nor
more than 60 days prior to the redemption date by the Trustee from the
Outstanding Securities of such series not previously called for redemption.
(b) The Trustee will promptly notify the Company in
writing of the Securities of such series selected for redemption and, in
the case of any Security of a series selected for partial redemption, the
principal amount thereof to be redeemed but not in integral multiples of
less than $1,000. Provisions of this Indenture that apply to Securities of
a series called for redemption also apply to portions of Securities of a
series called for redemption.
<PAGE> 109
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose
Securities are to be redeemed.
(b) The notice will identify the Securities of the series
to be redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series
is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption
must be surrendered to the Paying Agent at the address specified
in such notice to collect the redemption price;
(vi) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking
fund, if such is the case; and
(viii) the aggregate principal amount of
Securities that are being redeemed.
(c) At the Company's written request, the Trustee will
give the notice required in this Section 4.04 in the Company's name and at
its expense.
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption
date, the Company will deposit with the Trustee or with the Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.04 hereof) money sufficient to pay the
redemption price of, and accrued and previously unpaid interest on, all
Securities of such series to be redeemed on that date, and the Trustee will
remit the redemption price to Holders entitled thereto. The Trustee or the
Paying Agent will return to the Company any money not required for that
purpose.
<PAGE> 110
(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be
redeemed (whether or not such Securities are presented for payment) will
cease to accrue on the applicable redemption date. If any Security of such
series called for redemption is not so paid upon surrender because of the
failure of the Company to comply with Section 4.06(a) hereof, then interest
will be paid on the unpaid principal from the last Interest Payment Date
until such principal is paid in full at the rate determined pursuant to
Section 3.01 hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
<PAGE> 111
Section 5.02 Satisfaction of Sinking Fund Payments with Securities
Subject to Section 5.03 hereof, in lieu of making all or
any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' Certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. In the case of the failure of the Company to deliver such Officers'
Certificate, the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 5.02 hereof and without the right to make
any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.03
hereof and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
<PAGE> 112
Prior to any sinking fund payment date, the Company shall
pay to the Trustee or a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
Notwithstanding the foregoing, with respect to a sinking
fund for any series of Securities, if at any time the amount of cash to be
paid into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give the
next succeeding notice of the redemption of Securities of such series
through the operation of the sinking fund. Any such unused balance of
moneys deposited in such sinking fund shall be added to the sinking fund
payment for such series to be made in cash on the next succeeding sinking
fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series,
by public or private purchase as negotiated by the Company, in the open
market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the
principal amount thereof.
ARTICLE 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest
on, the Securities of each series on the dates and in the manner provided
herein and in the Securities. In the event the Company is not the Paying
Agent, principal and interest will be considered paid on the date due if
the Trustee or Paying Agent holds on that date money deposited by the
Company designated for and sufficient to pay all principal and interest
then due. In the event the Company is the Paying Agent, principal and
interest will be considered paid on the date actual payment is mailed to
the Holders entitled to such payments.
(b) The Company will pay interest on overdue principal at
the applicable interest rate on the Securities of each series as determined
in accordance with Section 3.01 hereof.
Section 6.02 Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment
for any series of Securities, in New York, New York, an office or agency
(which may be an office of the Trustee or the Registrar) where Securities
of such series may be presented or surrendered for payment, where
Securities of that series may be presented for registration of transfer or
<PAGE> 113
exchange and where notices and demands to or upon the Company in respect of
the Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company fails to maintain any such required office or agency or fails to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Securities of each series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in
accordance with this Section 6.02.
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original
principal amount of the Securities of any series is Outstanding, the
Company will (i) remain subject to the requirements of Section 13 or 15(d)
of the Exchange Act whether or not it is required to do so by the
provisions thereof and will file with the SEC all periodic reports as may
be required thereunder and (ii) file with the SEC, and the Trustee within 15
days after the Company is required to file the same with the SEC, copies of
the periodic reports which the Company may be required to file with the SEC
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. The Company
will also make such reports available to the Holders, prospective
purchasers of the Securities of any such series, securities analysts and
broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the
original principal amount of the Securities of any series is Outstanding
and (ii) the Company is not required to file with the SEC such reports and
other information referred to in Section 6.03(a) hereof, the Company will
furnish to the Trustee (A) within 120 days after the end of each fiscal
year, annual reports containing the information required to be contained in
Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B)
within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to
be contained in the Quarterly Report on Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be
<PAGE> 114
contained in any successor form and (C) promptly from the time after the
occurrence of an event which would be required to be reported in the
Current Report on Form 8-K if the Company was required to file such Report,
such other reports containing information required to be contained in the
Current Report on Form 8-K promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other provisions
of TIA Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its
own Paying Agent with respect to any series of Securities, it will, not
less than one Business Day before each due date of the principal of or
interest on any of the Securities of any series, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums will be paid
to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure to so act.
(b) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will, not less
than one Business Day before each due date of the principal of or interest
on, any Securities of any series, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the
payment of the principal of or interest on Securities of such series
in trust for the benefit of the Holders of such series of Securities and
the Trustee entitled thereto until such sums will be paid to such Persons
or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any Default
by the Company in the making of any payment of principal or interest;
(iii) at any time during the continuance of
any such Default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent; and
<PAGE> 115
(iv) acknowledge, accept and agree to
comply in all aspects with the provisions of this Indenture relating to
the duties, rights and disabilities of such Paying Agent.
(d) The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which
sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
(e) Except as provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on
any Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do know of a Default
or an Event of Default, the Officers' Certificate will describe the Default
or Event of Default and the action the Company is taking or proposes to
take with respect thereto.
(b) The Company will give prompt written notice to the
Trustee of the occurrence of any Default or Event of Default.
<PAGE> 116
Section 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien (other than a Permitted Lien) upon the property of the
Company, in each case except to the extent the failure to do so would not
have, in the judgment of management, a material adverse effect on the
Company and its Subsidiaries taken as a whole.
Section 6.08 Insurance
The Company will maintain and will cause each of its
Restricted Subsidiaries to maintain (either in the name of the Company or
in such Restricted Subsidiary's own name) with third party insurance
companies or pursuant to self-insurance, (i) insurance on all their
respective properties, (ii) public liability insurance against claims for
personal injury or death as a result of the use of any products sold by it
and (iii) insurance coverage against other business risks, in each case, in
at least such amounts and against at least such other risks (and with such
risk retention) as are usually and prudently insured against in the same
general area by companies engaged in the same or a similar business.
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
<PAGE> 117
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse affect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
Section 6.11 Disposition of Proceeds of Asset Sales
(a) Subject to the provisions set forth in Section 7.01
hereof, the Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, make any Asset Sale unless (i) the Company or
the Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value for the
shares or assets sold or otherwise disposed of (which will be determined in
good faith by the Board of Directors of the Company); provided, that the
aggregate Fair Market Value of the consideration received from any Asset
Sale that is not in the form of cash or cash equivalents will not, when
aggregated with the Fair Market Value of all other non-cash consideration
received by the Company and its Restricted Subsidiaries from all previous
Asset Sales since the Issue Date for Securities of any series that has not
been converted into cash or cash equivalents, exceed five percent of the
Consolidated Tangible Net Assets of the Company at the time of the Asset
Sale under consideration, and (ii) the Company will apply the aggregate Net
Proceeds received by the Company or any Restricted Subsidiary from all
Asset Sales occurring subsequent to such Issue Date as follows: (A) to
repay any outstanding Indebtedness of the Company that is not subordinated
to the Securities, or other Indebtedness of the Company, or to the payment
of any Indebtedness of any Restricted Subsidiary, in each case within one
year after such Asset Sale or (B) to replace the properties and assets that
were the subject of the Asset Sale or in properties and assets that (as
determined by the Board of Directors of the Company, whose determination
will be conclusive) will be used in the businesses existing on the Issue
Date of Securities of such series of the Company and its Restricted
Subsidiaries or in businesses reasonably related thereto within one year
after such Asset Sale. The amount of such Net Proceeds neither used to
repay the Indebtedness described above nor used or invested as set forth in
the preceding sentence constitutes "Excess Proceeds."
(b) Notwithstanding Section 6.11(a)(ii) hereof, to the
extent the Company or any of its Restricted Subsidiaries receives
securities or other noncash property or assets as proceeds of an Asset
Sale, the Company will not be required to make any application of such
noncash proceeds required by Section 6.11(a) hereof until it receives cash
or cash equivalent proceeds from a sale, repayment, exchange, redemption or
retirement of or extraordinary dividend or return of capital on such
noncash property. Any amounts deferred pursuant to the preceding sentence
will be applied in accordance with Section 6.11(a) hereof when cash
proceeds are thereafter received from a sale, repayment, exchange,
redemption or retirement of an extraordinary dividend or return of capital
on such noncash property.
<PAGE> 118
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company will so notify the Trustee in writing by
delivery of an Officers' Certificate and will offer to purchase from all
Holders (an "Excess Proceeds Offer"), and will purchase from Holders
accepting such Excess Proceeds Offer on the date fixed for the closing of
such Excess Proceeds Offer (the "Asset Sale Offer Date"), the maximum
principal amount (expressed as a multiple of $1,000) of Securities of each
series that may be purchased out of the Excess Proceeds, at an offer price
(the "Asset Sale Offer Price") in cash in an amount equal to 100 percent of
the principal amount thereof plus accrued and unpaid interest, if any, to
the Asset Sale Offer Date, in accordance with the procedures set forth in
this Section 6.11. To the extent that the aggregate amount of Securities of
each series tendered pursuant to an Excess Proceeds Offer is less than the
Excess Proceeds relating thereto, then the Company may use the Excess
Proceeds which exceed the aggregate amount of Securities of each series
tendered pursuant to such Excess Proceeds Offer for general corporate
purposes. Upon completion of an Excess Proceeds Offer, the amount of Excess
Proceeds will be reset at zero.
(d) Within 30 days after the date on which the amount of
Excess Proceeds equals $5,000,000 or more, the Company (with notice to the
Trustee) or the Trustee at the Company's request (and at the expense of the
Company) will send or cause to be sent by first-class mail, postage
prepaid, to all Holders on the date such Excess Proceeds equals $5,000,000,
at their respective addresses appearing in the Security Register, a notice
of such occurrence and of such Holders' rights arising as a result thereof.
Such notice will contain all instructions and materials necessary to enable
Holders to tender their Securities of any series to the Company. Such
notice, which will govern the terms of the Excess Proceeds Offer, will
state:
(i) that the Excess Proceeds Offer
is being made pursuant to this Section 6.11 and the length of time such
Excess Proceeds Offer will remain open;
(ii) that the Holder has the right to
require the Company to repurchase such Holder's Securities of such series
at the Asset Sale Offer Price;
(iii) that any Security of such series
not tendered will continue to accrue interest;
(iv) that any Security of such series
accepted for payment pursuant to the Excess Proceeds Offer will cease to
accrue interest on the Asset Sale Offer Date;
(v) that the Asset Sale Offer Date
will be no earlier than 45 days nor later than 60 days from the date such
notice is mailed;
<PAGE> 119
(vi) that Holders electing to have a
Security of such series purchased pursuant to any Excess Proceeds Offer
will be required to surrender the Security of such series, with the
appropriate form on the Security of such series completed, to the
Company, a depositary, if appointed by the Company, or a Paying Agent
at the address specified in the notice prior to termination of the Excess
Proceeds Offer;
(vii) that Holders will be entitled to
withdraw their election if the Company, depositary or Paying Agent, as
the case may be, receives, not later than the expiration of the Excess
Proceeds Offer, or such longer period as may be required by law, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security of such series the Holder
delivered for purchase and a statement that such Holder is withdrawing
its election to have the Security of such series purchased;
(viii) that Holders whose Securities of
such series are purchased only in part will be issued Securities of the same
series, Maturity date, interest rate and Issue Date equal in principal
amount to the unpurchased portion of the Securities of such series
surrendered; and
(ix) information concerning the
details of the Excess Proceeds Offer and the business of the Company which
the Company in good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (A) the most recently
filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Company, the most recent subsequently filed
Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Sales otherwise described in the offering
materials relating to the Excess Proceeds Offer (or corresponding
successor reports) (or in the event the Company is not required to prepare
any of the foregoing Forms, the comparable information required pursuant to
Section 6.03(b) hereof); provided that the Company may at its option
incorporate by reference any such filed reports in the notice, (B) a
description of material developments in the Company's business subsequent
to the date of the latest of such reports and (C) if material, appropriate
pro forma financial information.
(e) In the event the aggregate principal amount of
Securities of any series surrendered by Holders exceeds the amount of
Excess Proceeds, the Company will select the Securities of each series to
be purchased on a pro rata basis from all Securities of any series so
surrendered, with such adjustments as may be deemed appropriate by the
Company so that only Securities of any series in denominations of $1,000,
or integral multiples thereof, will be purchased. To the extent that the
Excess Proceeds remaining are less than $1,000, the Company may use such
Excess Proceeds for general corporate purposes. Holders whose Securities of
any series are purchased only in part will be issued new Securities of the
same series, Maturity date, interest rate and Issue Date equal in principal
amount to the unpurchased portion of the Securities of such series
surrendered.
<PAGE> 120
(f) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make an Excess Proceeds Offer.
Notwithstanding the foregoing, if an Excess Proceeds Offer is made, the
Company will pay for Securities of any series tendered for purchase in
accordance with the terms of this Section 6.11.
(g) Not later than one Business Day prior to the Asset
Sale Offer Date in connection with which the Excess Proceeds Offer is being
made, the Company will (i) accept for payment Securities of any series or
portions thereof tendered pursuant to the Excess Proceeds Offer (on a pro
rata basis if required pursuant to Section 6.11(e) hereof), (ii) deposit
with the Paying Agent money sufficient, in immediately available funds, to
pay the purchase price of all Securities of any series or portions thereof
so accepted and (iii) deliver to the Paying Agent an Officers' Certificate
identifying the Securities of such series or portions thereof accepted for
payment by the Company. The Paying Agent will promptly mail or deliver to
Holders of Securities of any series so accepted payment in an amount equal
to the Asset Sale Offer Price of the Securities of such series purchased
from each such Holder, and the Company will execute and upon receipt of an
Officers' Certificate of the Company the Trustee will promptly authenticate
and mail or deliver to such Holder a new Security of the same series,
Maturity date, interest rate and Issue Date equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities of such
series not so accepted will be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. The Company will
publicly announce the results of the Excess Proceeds Offer on the Asset Sale
Offer Date. For purposes of this Section 6.11(g), the Company will choose
a Paying Agent which will not be the Company or a Subsidiary thereof.
(h) Any Excess Proceeds Offer will be conducted by the
Company in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder, if applicable.
(i) Whenever Excess Proceeds are received by the Company,
and prior to the allocation of such Excess Proceeds pursuant to this
Section 6.11, such Excess Proceeds will be set aside by the Company in a
separate account to be held in trust for the benefit of the Holders;
provided, however, that in the event the Company will be unable to set
aside such Excess Proceeds in a separate account because of provisions of
applicable law or of any agreement, indenture, document or instrument
relating to Existing Indebtedness or Refinancing Indebtedness with respect
thereto, the Company will not be required to set aside such Excess
Proceeds.
<PAGE> 121
Section 6.12 Limitations on Restricted Payments
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Restricted Payment, directly or
indirectly, after the Issue Date of Securities of any series if at the time
of such Restricted Payment:
(i) the amount of such Restricted Payment (the
amount of such Restricted Payment, if other than in cash,
will be determined by the Board of Directors of the
Company), when added to the aggregate amount of all
Restricted Payments made after the Issue Date of the
Securities of any series, exceeds the sum of:
(1) $50,000,000, plus (2) 50 percent of the Company's
Consolidated Net Income accrued during the period (taken
as a single period) since January 1, 1995 (or, if such
aggregate Consolidated Net Income is a deficit, minus
100 percent of such aggregate deficit), plus (3) the net
cash proceeds derived from the issuance and sale of
Capital Stock of the Company and its Restricted Subsidiaries
that is not Disqualified Stock (other than a sale to a
Subsidiary of the Company) after the Issue Date of
Securities of any series but only to the extent not
applied under clause (c) of the definition of "Restricted
Payment" set forth in Section 1.02 hereof, plus (4) 100
percent of the principal amount of any Indebtedness
of the Company or a Restricted Subsidiary that is
converted into or exchanged for Capital Stock of
the Company that is not Disqualified Stock, plus (5) 100
percent of the aggregate amounts received by the Company
or any Restricted Subsidiary upon the sale, disposition
or liquidation (including by way of dividends) of any
Investment but only to the extent (x) not included in
Section 6.12(a)(i)(2) above and (y) that the making of
such Investment constituted a Restricted Investment made
pursuant to this Section 6.12(a)(i), plus (6) 100 percent
of the principal amount of, or if issued at a discount
the accreted value of, any Indebtedness or other
obligation that is the subject of a guaranty by the
Company which is released after the Issue Date of
Securities of any series, but only to the extent that the
granting of such guaranty constituted a "Restricted
Payment" under the definition set forth in Section 1.02
hereof; or
(ii) the Company would be unable to incur an
additional $1.00 of Indebtedness under the Consolidated
Fixed Charge Coverage Ratio contained in the covenant set
forth in Section 6.13(a) hereof; or
(iii) a Default or Event of Default has occurred and is
continuing or occurs as a consequence thereof.
<PAGE> 122
(b) Notwithstanding the foregoing, the provisions of this
Section 6.12 will not prevent: (i) the payment of any dividend within 60
days after the date of declaration thereof if the payment thereof would
have complied with the limitations of this Indenture on the date of
declaration, (ii) the retirement of shares of the Company's Capital Stock
or the Company's or a Subsidiary of the Company's Indebtedness for, in
exchange for or out of the proceeds of a substantially concurrent sale
(other than a sale to a Subsidiary of the Company) of, other shares of its
Capital Stock (other than Disqualified Stock) or (iii) the Company or any
Restricted Subsidiary from making any loan or advance to any Unrestricted
Subsidiary.
Section 6.13 Limitations on Additional Indebtedness
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to Incur any Indebtedness (other than Indebtedness
between the Company and its Restricted Subsidiaries which are Wholly Owned
Subsidiaries or among such Restricted Subsidiaries which are Wholly Owned
Subsidiaries), including Acquisition Debt, unless, after giving effect
thereto or the application of the proceeds therefrom, the (i) Company's
Consolidated Fixed Charge Coverage Ratio on the date thereof would be at
least 2.0 to 1.0; and (ii) ratio of the Company's Indebtedness (excluding
Non-Recourse Indebtedness) to Consolidated Tangible Net Worth on the date
thereof is not greater than 2.25 to 1.0.
(b) Notwithstanding the foregoing, the provisions of this
Indenture will not prevent: (i) in addition to the Indebtedness permitted
to be Incurred under clauses (ii) and (iii) of this sentence and
Indebtedness permitted to be Incurred under Section 6.13(a) hereof, the
Company from Incurring (A) Refinancing Indebtedness, (B) Non-Recourse
Indebtedness and (C) Indebtedness Incurred for working capital purposes or
to finance the acquisition, holding or development of property by the
Company and its Restricted Subsidiaries (including, without limitation, the
financing of any related interest reserve) in the ordinary course of
business in an aggregate amount at any one time outstanding not to exceed
$130,000,000 (excluding any Indebtedness referred to in Section 6.13(a)
hereof and subclauses (i)(A), (i)(B), (ii) and (iii) of this Section
6.13(b)), less the amount of any Indebtedness repaid pursuant to Section
6.11(a)(ii)(A) hereof, (ii) Unrestricted Subsidiaries from Incurring
Indebtedness, (iii) the Company and its Restricted Subsidiaries from
Incurring Indebtedness under any deposits made to secure performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
progress statements, government contracts and other obligations of like
nature (exclusive of the obligation for the payment of borrowed money), in
each case Incurred in the ordinary course of business of the Company or the
Restricted Subsidiary consistent with past practice and (iv) Restricted
Subsidiaries from guaranteeing Indebtedness of the Company or another
Restricted Subsidiary.
<PAGE> 123
Section 6.14 Restrictions on Restricted Subsidiary Indebtedness
The Company will not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any additional Indebtedness
after the Issue Date of Securities of any series other than: (i)
Refinancing Indebtedness, (ii) Non-Recourse Indebtedness, (iii)
Indebtedness to the Company, (iv) any deposits made to secure performance
of tenders, bids, leases, statutory obligations, surety and appeal bonds,
progress statements, government contracts, and other obligations of like
nature (exclusive of the obligation for the payment of borrowed money), in
each case Incurred in the ordinary course of business of the Restricted
Subsidiary and (v) any guaranty of Indebtedness of the Company or another
Restricted Subsidiary.
Section 6.15 Limitations and Restrictions on Capital Stock of
Subsidiaries
The Company will not permit any of its Restricted
Subsidiaries to issue, or permit to be outstanding at any time, Preferred
Stock or any other Capital Stock constituting Disqualified Stock.
Section 6.16 Change of Control
(a) Following the occurrence of any Change of Control,
the Company will so notify the Trustee in writing by delivery of an
Officers' Certificate and will offer to purchase (a "Change of Control
Offer") from all Holders, and will purchase from Holders accepting such
Change of Control Offer on the date fixed for the closing of such Change of
Control Offer (the "Change of Control Payment Date"), the Outstanding
Securities of each series at an offer price (the "Change of Control Price")
in cash in an amount equal to 101 percent of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Payment Date in accordance with the procedures set forth in this Section
6.16.
(b) Within 30 days after the date of any Change of
Control, the Company (with notice to the Trustee) or the Trustee at the
Company's request (and at the expense of the Company), will send or cause
to be sent by first class mail, postage prepaid, to all Holders on the date
of the Change of Control at their respective addresses appearing in the
Security Register a notice of the occurrence of such Change of Control and
of the Holders' rights arising as a result thereof. Such notice will
contain all instructions and materials necessary to enable Holders to
tender their Securities of such series to the Company. Such notice, which
will govern the terms of the Change of Control Offer, will state:
(i) that the Change of Control Offer is
being made pursuant to Section 6.16(a) hereof and the length of time the
Change of Control Offer will remain open;
(ii) that the Holder has the right to
require the Company to repurchase such Holder's Securities of such series
at the Change of Control Price;
<PAGE> 124
(iii) that any Security of such series not
tendered will continue to accrue interest;
(iv) that any Security of such series
accepted for payment pursuant to the Change of Control Offer will cease
to accrue interest on the Change of Control Payment Date;
(v) that the Change of Control Payment Date
will be no earlier than 45 days nor later than 60 days from the date such
notice is mailed;
(vi) that Holders electing to have a Security
of such series purchased pursuant to any Change of Control Offer will be
required to surrender the Security of such series, with the appropriate
form on the Security of such series completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to termination of the Change of Control Offer;
(vii) that Holders will be entitled to
withdraw their election if the Company, depositary or Paying Agent, as the
case may be, receives, not later than the expiration of the Change of
Control Offer, or such longer period as may be required by law, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security of such series the Holder
delivered for purchase and a statement that such Holder is withdrawing
its election to have the Security of such series purchased;
(viii) that Holders which elect to have their
Securities purchased only in part will be issued new Securities of the same
series, Maturity date, interest rate and Issue Date in a principal amount
equal to the unpurchased portion of the Securities of such series
surrendered; and
(ix) information concerning the date and
details of the Change of Control and the business of the Company which
the Company in good faith believes will enable such Holders to make an
informed decision (which at a minimum will include (A) the most recently
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly
Report on Form 10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current Reports
describing Asset Sales otherwise described in the offering materials
relating to the Change of Control Offer (or corresponding
successor reports) (or in the event the Company is not required to
prepare any of the foregoing Forms, the comparable information
required pursuant to Section 6.03(b) hereof); provided that the Company may
at its option incorporate by reference any such filed reports in the
notice, (B) a description of material developments in the Company's
business subsequent to the date of the latest of such reports, and (C) if
material, appropriate pro forma financial information).
(c) In the event of a Change of Control Offer, the
Company will only be required to accept Securities of each series in
denominations of $1,000 or integral multiples thereof.
<PAGE> 125
(d) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make a Change of Control Offer.
Notwithstanding the foregoing, if a Change of Control Offer is made, the
Company will pay for Securities of each series tendered for purchase in
accordance with the terms of this Section 6.16.
(e) Not later than one Business Day prior to the Change
of Control Payment Date in connection with which the Change of Control
Offer is being made, the Company will (i) accept for payment Securities of
each series or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent money sufficient, in immediately
available funds, to pay the purchase price of all Securities of each series
or portions thereof so accepted and (iii) deliver to the Paying Agent an
Officers' Certificate identifying the Securities of each series or portions
thereof accepted for payment by the Company. The Paying Agent will promptly
mail or deliver to Holders of Securities of each series so accepted payment
in an amount equal to the Change of Control Price of the Securities of each
series purchased from each such Holder, and the Company will execute and,
upon receipt of an Officers' Certificate of the Company, the Trustee will
promptly authenticate and mail or deliver to such Holder a new Security of
the same series, Maturity date, interest rate and Issue Date equal in
principal amount to any unpurchased portion of the Security of such series
surrendered. Any Securities of each series not so accepted will be promptly
mailed or delivered by the Paying Agent at the Company's expense to the
Holder thereof. The Company will publicly announce the results of the
Change of Control Offer on the Change of Control Payment Date. For purposes
of this Section 6.16(e), the Company will choose a Paying Agent which will
not be the Company or a Subsidiary thereof.
(f) Any Change of Control Offer will be conducted by the
Company in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder.
Section 6.17 Limitations on Transactions With Affiliates
(a) The Company will not, and will not permit any of its
Subsidiaries to, make any loan, advance, guaranty or capital contribution
to, or for the benefit of, or sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or for the benefit of, or purchase or
lease any property or assets from, or enter into or amend any contract,
agreement or understanding with, or for the benefit of, (i) any Affiliate
of the Company or any Affiliate of the Company's Subsidiaries or (ii) any
Person (or any Affiliate of such Person) holding 10 percent or more of the
Common Equity of the Company or any of its Subsidiaries (each an "Affiliate
Transaction"), except on terms that are no less favorable to the Company or
the relevant Subsidiary, as the case may be, than those that could have
been obtained in a comparable transaction on an arms' length basis from a
Person that is not an Affiliate.
<PAGE> 126
(b) The Company will not, and will not permit any of its
Subsidiaries to, enter into any Affiliate Transaction involving or having a
value of more than $10,000,000, unless in each case such Affiliate
Transaction has been approved by a majority of the disinterested members of
the Company's Board of Directors.
(c) The Company will not, and will not permit any of its
Subsidiaries to, enter into an Affiliate Transaction involving or having a
value of more than $20,000,000 unless the Company has delivered to the
Trustee an opinion of an Independent Financial Advisor to the effect that
the transaction is fair to the Company or the relevant Subsidiary, as the
case may be, from a financial point of view.
(d) Notwithstanding the foregoing, an Affiliate
Transaction will not include (i) any contract, agreement or understanding
with, or for the benefit of, or plan for the benefit of, employees or
directors of the Company or its Subsidiaries (in their capacity as such)
that has been approved by the Company's Board of Directors, (ii) Capital
Stock issuances to members of the Board of Directors, officers and
employees, of the Company or its Subsidiaries pursuant to plans approved by
the stockholders of the Company, (iii) any Restricted Payment otherwise
permitted under Section 6.12 hereof, (iv) any transaction between the
Company or a Restricted Subsidiary and another Restricted Subsidiary or (v)
any contract, agreement or understanding as in effect on the Issue Date of
Securities of any series or any amendment thereto or any transaction
contemplated thereby (including any amendment thereto).
Section 6.18 Limitations on Liens
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, Incur, assume or suffer to exist any
Liens, other than Permitted Liens, on any of its or their assets, property,
income or profits therefrom unless contemporaneously therewith or prior
thereto all payments due hereunder and under the Securities of any series
are secured on an equal and ratable basis with the obligation or liability
so secured until such time as such obligation or liability is no longer
secured by a Lien.
Section 6.19 Limitations on Restrictions on Distributions from
Restricted Subsidiaries
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, assume or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction (other
than encumbrances or restrictions imposed by law or by judicial or
regulatory action or by provisions in leases or other agreements that
restrict the assignability thereof) on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its
Capital Stock or any other interest or participation in, or measured by,
its profits, owned by the Company or any of its other Restricted
Subsidiaries, or pay interest on or principal of any Indebtedness owed to
<PAGE> 127
the Company or any of its other Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its other Restricted Subsidiaries, or
(iii) transfer any of its properties or assets to the Company or any of its
other Restricted Subsidiaries, except for encumbrances or restrictions
existing under or by reason of (a) applicable law, (b) covenants or
restrictions contained in Existing Indebtedness as in effect on the Issue
Date of Securities of any series, (c) any restrictions or encumbrances
arising in connection with the Existing Credit Facility; provided that any
restrictions and encumbrances relating to any extension or renewal of the
Existing Credit Facility are not more restrictive than those in the
Existing Credit Facility being extended or renewed, (d) any restrictions or
encumbrances arising in connection with Refinancing Indebtedness; provided
that any restrictions and encumbrances of the type described in this clause
(d) that arise under such Refinancing Indebtedness are not more restrictive
than those under the agreement creating or evidencing the Indebtedness
being refunded or refinanced, (e) any agreement restricting the sale or
other disposition of property securing Indebtedness permitted by this
Indenture if such agreement does not expressly restrict the ability of a
Subsidiary of the Company to pay dividends or make loans or advances, and
(f) reasonable and customary borrowing base covenants set forth in credit
agreements evidencing Indebtedness otherwise permitted by this Indenture
which covenants restrict or limit the distribution of revenues or sale
proceeds from real estate or a real estate project based upon the amount of
Indebtedness outstanding on such real estate or real estate project and the
value of some or all of the remaining real estate or the project's
remaining assets.
Section 6.20 Maintenance of Consolidated Tangible Net Worth
(a) In the event the Consolidated Tangible Net Worth of
the Company for any two consecutive fiscal quarters is less than
$115,000,000, within 30 days after the end of each such period the Company
will so notify the Trustee in writing by delivery of an Officers'
Certificate and will offer to purchase from all Holders (a "Net Worth
Offer"), and will purchase from Holders accepting such Net Worth Offer on
the date fixed for the closing of such Net Worth Offer (the "Net Worth
Offer Date"), ten percent of the original Outstanding principal amount of
the Securities of each series (the "Net Worth Amount") at an offer price
(the "Net Worth Offer Price") in cash in an amount equal to 100 percent of
the principal amount thereof plus accrued and unpaid interest, if any, to
the Net Worth Offer Date, in accordance with the procedures set forth in
this Section 6.20. To the extent that the aggregate amount of Securities of
each series tendered pursuant to a Net Worth Offer is less than the Net
Worth Amount relating thereto, then the Company may use the excess of the
Net Worth Amount over the amount of Securities of each series tendered, or
a portion thereof, for general corporate purposes.
(b) In the event the Consolidated Tangible Net Worth of
the Company for any two consecutive fiscal quarters is less than
$115,000,000, within 30 days after the end of such period, the Company
(with notice to the Trustee) or the Trustee at the Company's request (and
at the expense of the Company) will send or cause to be sent by first-class
mail, postage prepaid, to all Holders on the date of the end of the second
such consecutive fiscal quarter, at their respective addresses appearing in
<PAGE> 128
the Security Register, a notice of such occurrence and of each Holders'
rights arising as a result thereof. Such notice will contain all
instructions and materials necessary to enable Holders to tender their
Securities of each series to the Company. Such notice, which will govern
the terms of the Net Worth Offer, will state:
(i) that the Net Worth Offer is
being made pursuant to Section 6.20(a) hereof and the length of time such
Net Worth Offer will remain open;
(ii) that the Holder has the right
to require the Company to repurchase such Holder's Securities of such
series at the Net Worth Offer Price;
(iii) that any Security of such
series not tendered will continue to accrue interest;
(iv) that any Security of such
series accepted for payment pursuant to the Net Worth Offer will cease to
accrue interest on the Net Worth Offer Date;
(v) that the Net Worth Offer Date
will be no earlier than 45 days nor later than 60 days from the date such
notice is mailed;
(vi) that Holders electing to have a
Security of such series purchased pursuant to any Net Worth Offer will be
required to surrender the Security of such series, with the appropriate
form on the Security of such series completed, to the Company, a depositary,
if appointed by the Company, or a Paying Agent at the address specified in
the notice prior to termination of the Net Worth Offer;
(vii) that Holders will be entitled to
withdraw their election if the Company, depositary or Paying Agent, as
the case may be, receives, not later than the expiration of the Net Worth
Offer, or such longer period as may be required by law, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder delivered for purchase and
a statement that such Holder is withdrawing its election to have the
Security of such series purchased;
(viii) that Holders whose Securities
of such series are purchased only in part will be issued Securities of the
same series, Maturity date, interest rate and Issue Date equal in principal
amount to the unpurchased portion of the Securities of such series
surrendered; and
(ix) information concerning the
period and details of the events requiring the Net Worth Offer and the
business of the Company which the Company in good faith believes will
enable such Holders to make an informed decision (which at a minimum will
include (A) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most
recent subsequently filed Quarterly Report on Form 10-Q and any Current
<PAGE> 129
Report on Form 8-K of the Company filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials relating to the Net Worth
Offer (or corresponding successor reports) (or in the event the Company is
not required to prepare any of the foregoing Forms, the comparable
information required pursuant to Section 6.03(b) hereof); provided that the
Company may at its option incorporate by reference any such filed reports
in the notice, (B) a description of material developments in the Company's
business subsequent to the date of the latest of such reports, and (C) if
material, appropriate pro forma financial information).
(c) In the event the aggregate principal amount of
Securities of such series surrendered by Holders exceeds the Net Worth
Amount, the Company will select the Securities of such series to be
purchased on a pro rata basis from all Securities of such series so
surrendered, with such adjustments as may be deemed appropriate by the
Company so that only Securities of any series in denominations of $1,000,
or integral multiples thereof, will be purchased. To the extent that the
Net Worth Amount remaining is less than $1,000, the Company may use such
Net Worth Amount for general corporate purposes. Holders whose Securities
of such series are purchased only in part will be issued new Securities of
the same series, Maturity date, interest rate and Issue Date equal in
principal amount to the unpurchased portion of the Securities of such series
surrendered.
(d) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially
impair the ability of the Company to make a Net Worth Offer. Notwithstanding
the foregoing, if a Net Worth Offer is made, the Company will pay for
Securities of any series tendered for purchase in accordance with the terms
of this Section 6.20.
(e) Not later than one Business Day prior to the Net
Worth Offer Date in connection with which the Net Worth Offer is being
made, the Company will (i) accept for payment Securities of each series or
portions thereof tendered pursuant to the Net Worth Offer (on a pro rata
basis if required pursuant to Section 6.20(c) above), (ii) deposit with the
Paying Agent money sufficient, in immediately available funds, to pay the
purchase price of all Securities of each series or portions thereof so
accepted and (iii) deliver to the Paying Agent with an Officers'
Certificate identifying the Securities of each series or portions thereof
accepted for payment by the Company. The Paying Agent will promptly mail or
deliver to Holders of Securities of such series so accepted payment in an
amount equal to the Net Worth Offer Price of the Securities of such series
purchased from each such Holder, and the Company will execute and the
Trustee will promptly authenticate and mail or deliver to such Holder a new
Security of the same series, Maturity date, interest rate and Issue Date
equal in principal amount to any unpurchased portion of the Security of
such series surrendered. Any Securities of such series not so accepted will
be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the
results of the Net Worth Offer on the Net Worth Offer Date. For purposes of
this Section 6.20(e), the Company will choose a Paying Agent which will not
be the Company or a Subsidiary thereof.
<PAGE> 130
(f) Any Net Worth Offer will be conducted by the Company
in compliance with applicable law, including, without limitation, Section
14(e) of the Exchange Act and Rule 14e-1 thereunder, if applicable.
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially
all of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing, (iii) immediately after giving
effect to such transaction and the use of any net proceeds therefrom on a
pro forma basis, the Consolidated Tangible Net Worth of the Company or the
Successor, as the case may be, would be at least equal to the Consolidated
Tangible Net Worth of the Company immediately prior to such transaction and
(iv) the Consolidated Fixed Charge Coverage Ratio contained in Section
6.13(a)(i) hereof of the Company or the Successor, as the case may be,
immediately after giving effect to such transaction, would be such that the
Company or the Successor, as the case may be, would be entitled to Incur at
least $1 of additional Indebtedness under such Consolidated Fixed Charge
Coverage Ratio test.
(b) The Company will deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
<PAGE> 131
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events (whatever
the reason for such Event of Default and whether it will be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the failure by the Company to pay
interest on any Security of that series when the same becomes
due and payable and the continuance of any such failure for a
period of 30 days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes due
and payable at maturity, upon acceleration or otherwise (including
the failure to make payment pursuant to a Change of Control Offer,
an Excess Proceeds Offer or a Net Worth Offer, if applicable);
(iii) the failure by the Company to make any
sinking fund payment when the same becomes due and payable by the
terms of a Security of that series and Article 5 hereof;
(iv) the failure by the Company to comply with
any of its agreements or covenants in, or provisions of, the
Security of that series or this Indenture (other than an agreement
or covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series) and such failure
continues for the period and after the notice specified below;
<PAGE> 132
(v) the acceleration of any Indebtedness
(other than Non-Recourse Indebtedness) of the Company or any of its
Subsidiaries that has an outstanding principal amount of
$5,000,000 or more in the aggregate; provided that, in the event
any such acceleration is withdrawn or otherwise rescinded within a
period of five days after such acceleration by the holders of such
Indebtedness, any Event of Default under this Section 8.01(a)(v)
will be deemed to be cured and any acceleration hereunder will be
deemed withdrawn or rescinded;
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect
of Indebtedness (other than Non-Recourse Indebtedness) of the
Company or any of its Subsidiaries with an outstanding aggregate
amount of $5,000,000 or more within five days of such principal or
interest payment becoming due and payable (after giving effect to
any applicable grace period set forth in the documents governing
such Indebtedness);
(vii) a final judgment or judgments that exceed
$5,000,000 or more in the aggregate, for the payment of money,
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment
or judgments is not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(viii) the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an
order for relief against it in an
involuntary case,
(C) consents to the appointment of
a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for
the benefit of its creditors;
(ix) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(A) is for relief against the
Company or any Material Subsidiary as
debtor in an involuntary case,
<PAGE> 133
(B) appoints a Custodian of the
Company or any Material Subsidiary or a
Custodian for all or substantially all of the
property of the Company or any Material
Subsidiary, or
(C) orders the liquidation of the
Company or any Material Subsidiary,
and the order or decree remains unstayed and in effect
for 60 days; or
(x) any other Event of Default provided with
respect to Securities of that series.
(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives
written notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding
Securities of all series affected thereby notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." If such a Default is cured within such time period, it ceases.
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with
respect to the Company specified in clause (viii) or (ix) of Section
8.01(a) hereof) occurs and is continuing, the Trustee (after receiving
indemnities from the Holders to its satisfaction) by notice to the Company,
or the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of such series by notice to the Company and the
Trustee, may declare all Outstanding Securities of such series to be due
and payable immediately. Upon such declaration, the amounts due and payable
on the Securities of such series, as determined in Section 8.02(b) hereof,
will be due and payable immediately. If an Event of Default specified in
clause (viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will
ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee
and the Company may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
or interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
<PAGE> 134
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent
of the principal amount of the Securities of such series (or in the case of
a default under Section 8.01(a)(ii) or (iv) hereof resulting from a breach
of the covenant set forth in Section 6.16 hereof, 101 percent of the
principal amount of the Securities of such series) will become due and
payable plus accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal or interest on the Securities of any
series or to enforce the performance of any provision of the Securities of
any series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
Section 8.05 Control by Majority
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.06 Limitations on Suits
<PAGE> 135
(a) A Holder may pursue a remedy with respect to
this Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of that series;
(ii) the Holder(s) of at least 25 percent in
aggregate principal amount of all of the Outstanding Securities of
that series make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the
Trustee indemnity reasonably satisfactory
to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer
of indemnity; and
(v) during such 60-day period the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of such series do not give the Trustee a direction
inconsistent with the request.
(b) A Holder of a Security of any series may not use this
Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder.
Section 8.08 Collection Suit by Trustee
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
<PAGE> 136
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company, its creditors or property and will be
entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee, and in the event that the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 9.07 hereof. Nothing contained
herein will be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 8.10 Priorities
(a) In the event the Trustee collects any money pursuant
to this Article 8, it will pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07
hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally
entitled thereto.
(b) The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
<PAGE> 137
Section 8.12 Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations will be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates
or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof,
the Trustee will examine the certificates and opinions to
determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 9.01(c) does not limit the
effect of Section 9.01(b) hereof;
<PAGE> 138
(ii) the Trustee will not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the Trustee will not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 9.05 hereof or
when exercising any other trust or power conferred upon the
Trustee under this Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. Subject to Section 9.03 hereof, all
money received from the Trustee will, until applied as herein provided, be
held in trust for the payment of principal and interest on the Securities.
(f) The Trustees shall not be required to give any bond
or surety in respect of the exercise of its powers and performance of its
duties hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated
in the document but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee determines to make such further
inquiry or investigation, it will be entitled to examine the
books, records, and premises of the Company, personally or by
agent or attorney;
<PAGE> 139
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate. The Trustee may
consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(iii) the Trustee may act through agents and will not
be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds deposited
with it or in an account within its dominion and control;
(iv) the Trustee will not be liable for any action
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by
this Indenture; and
(v) unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise
and may refuse to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication.
<PAGE> 140
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series or a breach of the Change of
Control covenant, the Trustee may withhold such notice if and so long as a
committee of its Trust Officers in good faith determines that withholding
the notice is in the interests of such Holders.
Section 9.06 Reports by Trustee to Holders
(a) Within 60 days after each ______, beginning with
____________, the Trustee will mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a); provided,
however, if no event described in TIA Section 313(a) has occurred within
such calendar year, no report need be transmitted. The Trustee also will
comply with TIA Sections 313(b) and 313(c).
(b) A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on
which the Securities of any series are listed. The Company will notify the
Trustee when the Securities of any series are listed on any stock exchange.
Section 9.07 Compensation and Indemnity
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including, without
limitation, the reasonable compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its
part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
<PAGE> 141
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a Lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee with respect
to any series of Securities and appointment of a successor Trustee will
become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 9.08.
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the Outstanding Securities of any series
may remove the Trustee with respect to such series by so notifying the
Trustee and the Company. The Company may remove the Trustee with respect to
any series of Securities if:
(i) the Trustee fails to comply with
Section 9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee with respect to any series of Securities
for any reason, the Company will promptly appoint a successor Trustee.
(d) If a successor Trustee with respect to any series of
Securities does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of
at least ten percent in principal amount of the Outstanding Securities of
any series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(e) If the Trustee with respect to any series of
Securities fails to comply with Section 9.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee with
respect to such series.
<PAGE> 142
(f) A successor Trustee with respect to any series of
Securities will deliver a written acceptance of its appointment to the
retiring Trustee with respect to such series and to the Company. Thereupon
the resignation or removal of the retiring Trustee will become effective,
and the successor Trustee will have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee will mail a notice
of its succession to the Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 9.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 9.08, the Company's
obligations under Section 9.07 hereof will continue for the benefit of the
retiring Trustee.
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee with
respect to any series of Securities consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act will
be the successor Trustee; provided that in the case of a transfer of all or
substantially all of its corporate trust business to another corporation,
the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
(b) In case any Securities of any series have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of
the United States, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trustee power, (ii) be
subject to supervision or examination by federal or state (or the District
of Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee is subject to TIA Section 310(b). If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 9.10, it
will resign immediately in the manner and with the effect specified in
Section 9.08 hereof.
<PAGE> 143
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(i) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of such series of Securities as
of the Regular Record Date of such Interest Payment Date;
and
(ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.02 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
<PAGE> 144
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.20, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.20 inclusive, and any other
covenants specified in or pursuant to this Indenture) and 8.01(a)(x) shall
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
<PAGE> 145
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(x), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
Section 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, (1) the principal
of and interest on the Securities of such series on the respective
Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable
in accordance with the terms of this Indenture and such
Securities; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to such
Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 4.02 hereof, a notice of its
election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the
Securities of such series and Article 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
<PAGE> 146
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date first set forth hereinabove, there has been
a change in the applicable Federal income tax law, in either case,
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes as
a result of such Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge
were not to occur.
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as result of such Covenant
Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred
and be continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default within
the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(viii) Notwithstanding any other provisions of this
Section, such Defeasance or Covenant Defeasance shall be effected
in compliance with any additional or substitute terms, conditions
or limitations in connection therewith pursuant to Section 3.01
hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been
complied with.
<PAGE> 147
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations (or
other property and any proceeds therefrom) held by it as provided in
Section 11.04 hereof with respect to Outstanding Securities of any
Defeasible Series that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance with respect to the Securities of such series.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 11 with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply
<PAGE> 148
all money held in trust pursuant to Section 11.05 hereof with respect to
Securities of such series in accordance with this Article 11; provided,
however, that if the Company makes any payment of principal of or interest
on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series when
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 hereof, and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust
with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the
Company, as provided in Section 6.04 hereof) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense,
of the Company,
<PAGE> 149
and the Company, in the case of (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in cash sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
ARTICLE 13
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to comply with Section 7.01 hereof;
<PAGE> 150
(iii) to provide for uncertificated Securities
in addition to certificated Securities;
(iv) to make any change that does not adversely
affect the legal rights hereunder of any Holder of a
Security of any series;
(v) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(vi) to add any additional Events of Default
for the benefit of the Holders of all or any series of
Securities (and if such Events of Default are to be for
the benefit of less then all series of Securities,
stating that such Events of Default are being included
solely for the benefit of such series);
(vii) to change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities; provided that any such addition,
change or elimination shall become effective only when
there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(viii) to establish the form or terms of
Securities of any series as permitted by Sections 2.01 and
3.01 hereof;
(ix) to secure the Securities pursuant to the
requirements of Section 6.18 hereof;
(x) to evidence and provide for the
acceptance of appointment hereunder of a successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of
Section 9.08 hereof;
(xi) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to
implement the provisions of Article 11 hereof or
discharge of any series of Securities pursuant to
Sections 12.01, 12.02 and 12.03 hereof; provided that any
such action shall not adversely affect the interests of
the Holders of Securities of such series or any other
series in any material respect; or
<PAGE> 151
(xii) to comply with the qualification of this
Indenture under the TIA.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be contained therein. After an amendment or waiver
under this Section 13.01 becomes effective, the Company will mail to the
Holders of each Security affected thereby a notice describing the amendment
or waiver. Any failure of the Company to mail such notice, will not,
however, affect the validity of any such supplemental indenture.
Section 13.02 Supplemental Indentures With Consent of Holders
(a) Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each series
affected by such amendment.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.06 hereof, the Trustee will join with the
Company in the execution of such supplemental indenture.
(c) It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any
proposed amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange
offer for Securities). However, without the consent of each Holder of an
Outstanding Security affected thereby, an amendment or waiver under this
Section 13.02 may not:
<PAGE> 152
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security or
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on
or after the redemption date or repayment date), or
(ii) reduce the percentage in principal amount
of the Outstanding Securities of any series, the consent
of whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify any of the provisions of this
Section or Section 8.07, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify the ranking or priority of the
Securities in a manner adverse to the Holders.
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required
from such Holder) may be subject to the requirement that such Holder has
been the Holder of record of any Securities of any series with respect to
which such consent is required or sought as of a date identified by the
Trustee in a notice furnished to Holders in accordance with the terms of
this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
<PAGE> 153
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to such Holder's Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective. An amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any amendment or waiver. If the Company elects to fix a record date for
such purpose, the record date will be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 10.02 hereof or (ii) such other date as the Company
will designate. If a record date is fixed, then notwithstanding the
provisions of Section 13.04(a) hereof, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, will be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent will be valid or effective
for more than 90 days unless consents from Holders of the principal amount
of Securities required hereunder for such amendment or waiver to be
effective has also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless
it is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
<PAGE> 154
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
Section 14.02 Notices
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
If to the Company:
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 845-2000
Attention: Corporate Trust Administration
<PAGE> 155
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder will be
mailed by first-class, postage-prepaid mail, return receipt requested, to
the Holder's address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee and each Agent at the same
time.
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
<PAGE> 156
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
The Trustee will fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
Global Security held by a Depository entitled under the procedures of such
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Persons who are such
beneficial owners at the close of business on such record date or their
duly appointed proxy or proxies will be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
actions, whether or not such Persons remain such beneficial owners after
such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action will be valid or effective if made,
given or taken more than six months after such record date.
Section 14.05 Proof of Execution of Instruments and Holding of Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds
to be recorded in such jurisdiction that the Person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other
officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where Securities
are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
(3) The ownership of Securities shall be proved
by the Securities Register for such Security or by a
certificate of the Registrar.
<PAGE> 157
(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) will
include:
(i) a statement that the Person making such
certificate or opinion has read such condition or covenant;
(ii) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
<PAGE> 158
(iii) a statement that, in the opinion of such
Person, such Person has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has
been complied with.
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, or other Persons or firms deemed appropriate by
such counsel, unless such counsel has actual knowledge that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may be an
employee of the Company), or firm of accountants, unless such Officer or
counsel, as the case may be, has actual knowledge that the certificate or
opinion or representation with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous.
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
<PAGE> 159
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent
and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
<PAGE> 160
Section 14.19 Acceptance of Trust
IBJ Schroder Bank & Trust Company, the Trustee named
herein hereby, accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
1. to give any notice to the Company or to
the Trustee, or to give any direction to the Trustee, or to waive
any non-performance hereunder, and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of
the provisions of this Indenture;
2. to remove the Trustee and appoint a
successor Trustee pursuant to the provisions of Section 9.08 hereof;
3. to consent to the amendment of the
provisions contained herein and the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Article 13 hereof; or
4. to take any other action authorized to be
taken by or on behalf of the Holders of any specified aggregate
principal amount of the Outstanding Securities under any other
provision of this Indenture or under applicable law.
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, setting forth the time and
the place of such meeting and, in general terms, the action proposed to be
taken at such meeting, shall be mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
<PAGE> 161
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
<PAGE> 162
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
-------------------------
Thomas A. Napoli
Vice President - Finance and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
Name:
Title:
<PAGE> 163
EXHIBIT 4.2
FORM OF
SENIOR SUBORDINATED INDENTURE,
dated as of _______ __, 199_,
between
U.S. HOME CORPORATION
and
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
<PAGE> 164
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
---------- -----------------
310(a)(1)............................... 9.10
(a)(2)............................. 9.10
(a)(3)............................. N.A.
(a)(4)............................. N.A.
(b)................................ 9.08; 9.10
(c)................................ N.A.
311(a).................................. 9.11
(b)................................ 9.11
(c)................................ N.A.
312 (a)................................ 10.01; 10.02
(b)................................ 10.02; 14.03
(c)................................ 10.02
313(a).................................. 9.06
(b)(1)............................. 9.06
(b)(2)............................. 9.06
(c)................................ 9.06
(d)................................ 9.06
314(a).................................. 6.03
(b)................................ N.A.
(c)(1)............................. 14.04; 14.05
(c)(2)............................. 14.04; 14.05
(c)(3)............................. 14.05
(d)................................ N.A.
(e)................................ 14.05
(f)................................ N.A.
315(a).................................. 9.01
(b)................................ 9.05
(c)................................ 9.01
(d)................................ 9.01
(e)................................ 8.11
316(a)(last sentence)................... 8.05
(a)(1)(A).......................... 8.05
(a)(1)(B).......................... 8.04
(a)(2)............................. Not applicable
(b)................................ 8.07
<PAGE> 165
317(a)(1)............................... 8.08
(a)(2)............................. 8.09
(b)................................ 3.05
318(a).................................. 14.01
N.A. means not applicable
Note: This cross-reference table will not, for
any purpose, be deemed to be a part of
this Indenture.
<PAGE> 166
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Rules of Construction 1
Section 1.02 Definitions 2
Affiliate 2
Agent 2
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Stock 2
Cash Equivalents 2
Common Equity 3
Company 3
Company Request or Company Order 3
Corporate Trust Office of the Trustee 3
Covenant Defeasance 3
Custodian 3
Default 3
Defaulted Interest 3
Defeasance 3
Defeasible Series 3
Depository 3
DTC 3
Event of Default 3
Exchange Act 3
Fair Market Value 4
GAAP 4
Global Security 4
Holder 4
Indenture 4
Interest Payment Date 4
Issue Date 4
Legal Holiday 4
Material Subsidiary 4
Maturity 4
Officer 5
Officers' Certificate 5
Opinion of Counsel 5
<PAGE> 167
Outstanding 5
Paying Agent 6
Person 6
Place of Payment 6
Registered Security 6
Registrar 6
Regular Record Date 6
SEC 6
Securities 6
Security Register 6
Senior Indebtedness 6
Special Record Date 7
Stated Maturity 7
Subsidiary 7
Successor 7
TIA 7
Trustee 7
Trust Officer 8
U.S. Government Obligations 8
Section 1.03 Incorporation by Reference of TIA 8
ARTICLE 2 SECURITY FORMS 8
Section 2.01 Forms Generally 8
Section 2.02 Form of Legend for Global Securities 9
Section 2.03 Form of Trustee's Certificate of
Authentication 9
ARTICLE 3 THE SECURITIES 10
Section 3.01 Amount Unlimited; Issuable in
Series 10
Section 3.02 Denominations 13
Section 3.03 Execution, Authentication,
Delivery and Dating 13
Section 3.04 Temporary Securities 14
Section 3.05 Registration, Registration of
Transfer and Exchange 15
Section 3.06 Mutilated, Destroyed, Lost and
Stolen Securities 18
Section 3.07 Payment of Interest; Interest Rights
Preserved 19
Section 3.08 Persons Deemed Owners 20
Section 3.09 Cancellation 21
Section 3.10 Computation of Interest 21
ARTICLE 4 REDEMPTION 21
Section 4.01 Applicability of Article 21
Section 4.02 Election to Redeem; Notice
to Trustee 21
<PAGE> 168
Section 4.03 Selection of Securities to Be
Redeemed 22
Section 4.04 Notices to Holders 22
Section 4.05 Effect of Notice of Redemption 23
Section 4.06 Deposit of Redemption Price 23
Section 4.07 Securities Redeemed in Part 23
Section 4.08 Optional Redemption 23
ARTICLE 5 SINKING FUNDS 24
Section 5.01 Applicability of Article 24
Section 5.02 Satisfaction of Sinking Fund
Payments with Securities 24
Section 5.03 Redemption of Securities for
Sinking Fund 24
ARTICLE 6 COVENANTS 25
Section 6.01 Payment of Securities 25
Section 6.02 Maintenance of Office or Agency 26
Section 6.03 SEC Reports; Financial Statements 26
Section 6.04 Money for Security Payments to Be
Held in Trust 27
Section 6.05 Compliance Certificate 28
Section 6.06 Corporate Existence, etc. 29
Section 6.07 Payment of Taxes and Other Claims 29
Section 6.08 Insurance 29
Section 6.09 Stay, Extension and Usury Laws 29
Section 6.10 Maintenance of Properties 30
Section 6.11 Prohibition on Issuance of Other
Subordinated Indebtedness Senior to
the Securities 30
ARTICLE 7 SUCCESSORS 30
Section 7.01 Limitations on Mergers and
Consolidations 30
Section 7.02 Successor Corporation Substituted 31
ARTICLE 8 DEFAULTS AND REMEDIES 31
Section 8.01 Events of Default 31
Section 8.02 Acceleration 33
Section 8.03 Other Remedies 34
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture
Provisions 34
Section 8.05 Control by Majority 34
Section 8.06 Limitations on Suits 35
Section 8.07 Rights of Holders to Receive Payment 35
Section 8.08 Collection Suit by Trustee 35
<PAGE> 169
Section 8.09 Trustee May File Proofs of Claim 36
Section 8.10 Priorities 36
Section 8.11 Undertaking for Costs 36
Section 8.12 Restoration of Rights and Remedies 37
ARTICLE 9 TRUSTEE 37
Section 9.01 Duties of Trustee 37
Section 9.02 Rights of Trustee 38
Section 9.03 Individual Rights of Trustee 39
Section 9.04 Trustee's Disclaimer 39
Section 9.05 Notice Defaults 39
Section 9.06 Reports by Trustee to Holders 40
Section 9.07 Compensation and Indemnity 40
Section 9.08 Replacement of Trustee 41
Section 9.09 Successor Trustee by Merger, etc. 42
Section 9.10 Eligibility; Disqualification 42
Section 9.11 Preferential Collection of Claims
Against Company 42
ARTICLE 10 HOLDERS' LISTS 43
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders 43
Section 10.02 Preservation of Information 43
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE 43
Section 11.01 Company's Option to Effect
Defeasance or Covenant Defeasance 43
Section 11.02 Defeasance and Discharge 43
Section 11.03 Covenant Defeasance 44
Section 11.04 Conditions to Defeasance or
Covenant Defeasance 45
Section 11.05 Deposited Money and U.S. Government
Obligations to Be Held in
Trust; Other Miscellaneous Provisions 47
Section 11.06 Reinstatement 47
ARTICLE 12 SATISFACTION AND DISCHARGE 48
Section 12.01 Satisfaction and Discharge
of Indenture 48
Section 12.02 Application of Trust Money 49
ARTICLE 13 SUPPLEMENTAL INDENTURES 49
Section 13.01 Supplemental Indentures Without
Consent of Holders 49
Section 13.02 Supplemental Indentures With Consent
of Holders 51
Section 13.03 Compliance With TIA 52
Section 13.04 Revocation and Effect of Consents 52
Section 13.05 Notation on or Exchange of Securities 53
<PAGE> 170
Section 13.06 Trustee to Sign Amendments, etc. 53
Section 13.07 Subordination Unimpaired 53
ARTICLE 14 MISCELLANEOUS 54
Section 14.01 TIA Controls 54
Section 14.02 Notices 54
Section 14.03 Communication by Holders With Other
Holders 55
Section 14.04 Action by Securityholders 55
Section 14.05 Proof of Execution of Instruments
and Holding of Securities 56
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities 56
Section 14.07 Certificate and Opinion as to
Conditions Precedent 57
Section 14.08 Statements Required in Certificate
or Opinion 57
Section 14.09 Rules by Trustee and Agents 58
Section 14.10 No Recourse Against Others 58
Section 14.11 Governing Law 58
Section 14.12 No Adverse Interpretation of Other
Agreements 58
Section 14.13 Successors 58
Section 14.14 Severability 59
Section 14.15 Counterpart Originals 59
Section 14.16 Trustee as Paying Agent and Registrar 59
Section 14.17 Table of Contents, Headings, etc. 59
Section 14.18 Benefits of Indenture 59
Section 14.19 Acceptance of Trust 59
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES 59
Section 15.01 Purposes of Meetings 59
Section 15.02 Call of Meetings by Trustee 60
Section 15.03 Call of Meetings by Company or
Securityholders 60
Section 15.04 Person Entitled to Vote at Meeting 60
Section 15.05 Regulations for Meeting 61
ARTICLE 16 SUBORDINATION; SENIORITY 61
Section 16.01 Securities Subordinated to Senior
Indebtedness 61
Section 16.02 Company Not To Make Payments with
Respect to Securities in Certain
Circumstances 62
Section 16.03 Subrogation of Securities 64
Section 16.04 Authorization by Holders 65
Section 16.05 Notices to Trustee 65
Section 16.06 Trustee's Relation to Senior
Indebtedness 66
Section 16.07 No Impairment of Subordination 66
Section 16.08 Article 16 Not to Prevent Events of
Default 67
Section 16.09 Paying Agents Other Than the Trustee 67
<PAGE> 171
INDENTURE, dated as of _______ __, 199_, between U.S.
Home Corporation, a Delaware corporation, and IBJ Schroder Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises
and the acquisition of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Rules of Construction
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and
transactions.
<PAGE> 172
Section 1.02 Definitions
Capitalized terms used herein will have the following
respective meanings when used herein:
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this Indenture, each executive
officer and director of the Company will be an Affiliate of the Company. In
addition, for purposes of this Indenture, control of a Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of
debtors.
"Board of Directors" means the board of directors of a
Person or any authorized committee of the board of directors of such
Person.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
rights to purchase, warrants or options (whether or not currently
exercisable), participations, or other equivalents of or interests in
(however designated) the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests)
of such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Cash Equivalents" means any of the following, to the
extent owned by the Company, free and clear of all liens and having a
maturity of not greater than 90 days from the date of issuance thereof: (i)
readily marketable direct obligations of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the United States, (ii) insured certificates of
deposit of or time deposits with any commercial bank that is (a) a member
of the Federal Reserve System, (b) issues (or the parent of which issues)
commercial paper rated as described in clause (iii) below, (c) is organized
under the laws of the United States or any State thereof and (d) has
<PAGE> 173
combined capital and surplus of at least $1,000,000,000 or (iii) commercial
paper in an aggregate amount of no more than $5,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States or the District of Columbia that is not
an Affiliate of the Company and rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investor Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Corporation.
"Common Equity" of any Person means all Capital Stock of
such Person that is generally entitled (i) to vote in the election of
directors of such Person, or (ii) if such Person is not a corporation, to
vote or otherwise participate in the selection of the governing body,
partners, managers or others that will control the management and policies
of such Person.
"Company" means U.S. Home Corporation, a Delaware
corporation, and any successor thereof.
"Company Request or Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its President, its Senior Vice President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" will be at the
address of the Trustee specified in Section 14.02 hereof or such other
address as the Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in
Section 11.03 hereof.
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or
after notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in
Section 3.07 hereof.
"Defeasance" has the meaning set forth in Section 11.02
hereof.
"Defeasible Series" has the meaning set forth in
Section 11.01 hereof.
"Depository" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depository for such Securities as contemplated by
Section 3.01.
<PAGE> 174
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in
Section 8.01(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" with respect to any asset or property
means the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect on
the Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depository for such Securities or a
nominee thereof.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the TIA that are deemed to
be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
3.01 hereof.
"Interest Payment Date", when used with respect to a
Security of any series, means the Stated Maturity of an installment of
interest on such Security.
"Issue Date" means the date of original issuance of the
Securities of each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which
banking institutions in New York, New York or at a Place of Payment are
authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a Place of Payment, payment
shall be made at that place on the next succeeding day that is not a Legal
Holiday.
<PAGE> 175
"Material Subsidiary" has the meaning set forth in the
Indenture, dated as of June 21, 1993, between the Company and IBJ Schroder
Bank & Trust Company, as trustee, relating to the Company's 9 3/4% Senior
Notes due 2003 as in effect on the date hereof.
"Maturity", when used with respect to a Security of any
series, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Non-Recourse Indebtedness" has the meaning set forth in
the Indenture, dated as of June 21, 1993, between the Company and IBJ
Schroder Bank & Trust Company, as trustee, relating to the Company's 9 3/4%
Senior Notes due 2003 as in effect on the date hereof.
"Officer" means the Chairman of the Board, the President,
the Senior Vice President, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President
of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or
Co-Chief Executive Officer), Chief Operating Officer, Chief Financial
Officer or Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities as to which the Defeasance has been
effected pursuant to Section 11.02 hereof; and
<PAGE> 176
(iv) Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other
Securities has been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any interest on any Securities of any series.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the principal of
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01 hereof.
"Registered Security" means any Security established
pursuant to Section 3.01 hereof which is registered in the Security
Register.
"Registrar" has the meaning set forth in Section 3.05
hereof.
<PAGE> 177
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"SEC" means the Securities and Exchange Commission, and
any successor thereto.
"Securities" has the meaning set forth in the first
recital of this Indenture and more particularly means any securities of any
series authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in
Section 3.05 hereof.
"Senior Indebtedness" means the principal of (premium, if
any) and interest on (including, without limitation, interest accruing
subsequent to the filing of a petition under applicable Bankruptcy Law or
the appointment of a Custodian), (i) any and all indebtedness and
obligations of the Company (including indebtedness of others guaranteed by
the Company), whether or not contingent and whether or not outstanding on
the Issue Date of the Securities of any series or thereafter created,
incurred or assumed, including, without limitation, all charges, fees,
expenses (including, without limitation, reasonable attorneys' fees and
expenses and other amounts incurred by or owing to holders of such
indebtedness), which (a) is for money borrowed, (b) is evidenced by any
bond, note, debenture or similar instrument, (c) represents the unpaid
balance on the purchase price of any property, business or asset of any
kind, (d) is an obligation of the Company as lessee under any and all
leases of property, equipment or other assets required to be capitalized on
the balance sheet of the lessee under GAAP, (e) is a reimbursement
obligation of the Company with respect to letters of credit, (f) is an
obligation of the Company with respect to an interest swap obligation or a
foreign exchange agreement or (g) is an obligation of another secured by a
lien to which any of the properties or assets (including, without
limitation, leasehold interests and any other tangible or intangible
property rights) of the Company are subject, whether or not the obligation
secured thereby will have been assumed by the Company or will otherwise be
the Company's legal liability and (ii) any deferrals, amendments, renewals,
extensions, modifications and refundings of any indebtedness or obligations
of the types referred to above; provided that Senior Indebtedness will not
include (A) the (x) Securities of any series or (y) the Company's 4-7/8%
Convertible Subordinated Debentures due 2005, (B) any indebtedness or
obligation of the Company (or the instrument creating or evidencing it)
which expressly provides that such indebtedness is not superior in right of
payment to the Securities of any series or which expressly provides that
such indebtedness is subordinate in right of payment to all other
indebtedness of the Company (including the Securities of any series), (C)
any indebtedness or obligation of the Company to any of its Subsidiaries
and (D) any indebtedness or obligation incurred by the Company in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
<PAGE> 178
"Special Record Date" for the payment of any Defaulted
Interest on any Security means a date fixed by the Trustee pursuant to
Section 3.07 hereof.
"Stated Maturity", when used with respect to any Security
of any series or any installment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of
which at least a majority of the aggregate voting power of all classes of
the Common Equity is directly or indirectly beneficially owned by such
Person, and (ii) any entity other than a corporation of which such Person
directly or indirectly beneficially owns at least a majority of the Common
Equity.
"Successor" has the meaning set forth in Section 7.01(a)
hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to the Securities of
that series.
"Trust Officer" means any Senior Vice President, Vice
President, Assistant Vice President, Assistant Secretary or Assistant
Treasurer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"U.S. Government Obligations" means (i) any security that
is (a) a direct obligation of the United States for the payment of which
full faith and credit of the United States is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
<PAGE> 179
Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by or pursuant to this Indenture or
any indenture supplemental hereto and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the Officers
executing such Security as evidenced by their execution of such Security.
If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy thereof shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 hereof for the authentication and delivery of such Securities.
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a copy thereof at the time of issuance of each
Security of such series, but such Board Resolution shall be delivered at or
prior to the time of issuance of the first Security of such series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any
other manner, all as determined by the Officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
<PAGE> 180
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF TRANSFER OF,
OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[Name of Trustee]
----------------------
As Trustee
By....................
Authorized Officer
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03 hereof, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series the
following:
<PAGE> 181
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 4.07 or 13.05 hereof and except for any
Securities which, pursuant to Section 3.03 hereof, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which
such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Security on any Interest
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated
if other than on the basis of actual days elapsed over a 365 or
366-day year;
(6) the place or places, if any, other than or in
addition to New York, New York, where the principal of and
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the same series may be surrendered for
exchange and, if different from the location specified in Section
14.02 hereof, the place or places where notices or demands to or
upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within, the price or prices
at and the terms and conditions upon, which Securities of the series
may be redeemed or purchased, in whole or in part, at the option
of the Company;
<PAGE> 182
(8) the obligation, if any, of the Company to redeem
or repurchase Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series
shall be redeemed or repurchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in
which payment of the principal of and interest on any Securities
of the series shall be payable if other than the currency of the
United States and the manner of determining the equivalent thereof
in the currency of the United States for purposes of the definition
of "Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities
of the series is to be payable, at the election of the Company or
a Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount of the
Securities of any series, the portion of the principal amount
of such Securities which shall be payable upon declaration of
acceleration of the Maturity thereof;
(14) if applicable, that the Securities of the series
shall be defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depository or
Depositories for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.05 hereof in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of,
a Person other than the Depository for such Global Security or a
nominee thereof and in which any such transfer may be registered;
<PAGE> 183
(16) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(17) if other than the Trustee, the identity of each
Paying Agent and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 3.03 hereof) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company.
<PAGE> 184
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 3.01 hereof, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 2.01 hereof, that such form or forms have been established
in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.01
hereof, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities.
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.01 hereof or
the Company Order and Opinion of Counsel otherwise required pursuant to
such preceding paragraph at the time of issuance of each Security of such
series, but such documents shall be delivered at or prior to the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
<PAGE> 185
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of a
Trust Officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 hereof together with a written
statement (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
<PAGE> 186
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the
Securities of each series including any Global Security (the "Security
Register") in an office or agency of the Company in a Place of Payment (the
"Registrar") where, subject to Section 3.05(c) hereof and such reasonable
regulations as the Company may prescribe, Securities may be presented for
registration of transfer or for exchange. The Company may appoint one or
more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
<PAGE> 187
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to
issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) In case the Company, pursuant to Article 7 hereof,
will be consolidated or merged with or into any other Person or will
convey, transfer or lease substantially all of its properties and assets to
any Person, and the Successor resulting from such consolidation, or
surviving such merger, or into which the Company will have been merged, or
the Person which will have received a conveyance, transfer or lease as
aforesaid, will have executed an indenture supplemental hereto with the
Trustee pursuant to Article 7 hereof, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer or
lease may, from time to time, at the request of the Successor, be exchanged
for other Securities executed in the name of the Successor with such
changes in phraseology and form as may be appropriate, but otherwise in
substance and of like tenor as the Securities surrendered for such exchange
and of like principal amount; and the Trustee, upon receipt of an Officers'
Certificate from the Successor, will authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor, at the option of the Holders but without expense to them, will
provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any
series are to be issued in whole or in part in the form of one or more
Global Securities, authenticate and deliver one or more Global Securities
that will (i) represent and will be denominated in an amount equal to the
aggregate outstanding principal amount of the Securities to be represented
by such Global Security or Securities, (ii) be registered in the name of
the Depository for such Global Security or Securities or the nominee of
such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
<PAGE> 188
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security will be
canceled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
<PAGE> 189
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
<PAGE> 190
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 6.02 hereof.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
defaulted interest and, if applicable, interest on such defaulted interest
(to the extent lawful) at the rate specified in the Securities of such
series (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at
its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money (except as otherwise
specified pursuant to Section 3.01 hereof for the Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
<PAGE> 191
10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Securities
of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
If notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor have been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of the securities
exchange on which such Securities may be listed, if any, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
The provisions of this Section 3.07 may be
applicable to any series of Securities pursuant to Section 3.01 hereof
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 3.01 hereof).
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
<PAGE> 192
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, registration of
transfer or exchange or for credit against any current or future sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
ARTICLE 4
REDEMPTION
Section 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 30 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding
Securities of a series are to be redeemed, the Trustee will select the
Securities of such series to be redeemed pro rata or by lot or by any other
<PAGE> 193
method the Trustee deems fair and appropriate but only in integral
multiples of $1,000. The particular Securities of a series to be redeemed
will be selected, unless otherwise provided herein, not less than 20 nor
more than 60 days prior to the redemption date by the Trustee from the
Outstanding Securities of such series not previously called for redemption.
(b) The Trustee will promptly notify the Company in
writing of the Securities of such series selected for redemption and, in
the case of any Security of a series selected for partial redemption, the
principal amount thereof to be redeemed but not in integral multiples of
less than $1,000. Provisions of this Indenture that apply to Securities of
a series called for redemption also apply to portions of Securities of a
series called for redemption.
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose
Securities are to be redeemed.
(b) The notice will identify the Securities of the
series to be redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series
is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying
Agent;
(v) that Securities called for redemption
must be surrendered to the Paying Agent at the address specified
in such notice to collect the redemption price;
(vi) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking
fund, if such is the case; and
(viii) the aggregate principal amount of
Securities that are being redeemed.
(c) At the Company's written request, the Trustee
will give the notice required in this Section 4.04 in the Company's name
and at its expense.
<PAGE> 194
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption
date, the Company will deposit with the Trustee or with the Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.04 hereof) money sufficient to pay the
redemption price of, and accrued and previously unpaid interest on, all
Securities of such series to be redeemed on that date, and the Trustee will
remit the redemption price to Holders entitled thereto. The Trustee or the
Paying Agent will return to the Company any money not required for that
purpose.
(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be
redeemed (whether or not such Securities are presented for payment) will
cease to accrue on the applicable redemption date. If any Security of such
series called for redemption is not so paid upon surrender because of the
failure of the Company to comply with Section 4.06(a) hereof, then interest
will be paid on the unpaid principal from the last Interest Payment Date
until such principal is paid in full at the rate determined pursuant to
Section 3.01 hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
<PAGE> 195
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 5.02 Satisfaction of Sinking Fund Payments with Securities
Subject to Section 5.03 hereof, in lieu of making all or
any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' Certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
<PAGE> 196
date. In the case of the failure of the Company to deliver such Officers'
Certificate, the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 5.02 hereof and without the right to make
any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.03
hereof and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
Prior to any sinking fund payment date, the Company shall
pay to the Trustee or a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
Notwithstanding the foregoing, with respect to a sinking
fund for any series of Securities, if at any time the amount of cash to be
paid into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give the
next succeeding notice of the redemption of Securities of such series
through the operation of the sinking fund. Any such unused balance of
moneys deposited in such sinking fund shall be added to the sinking fund
payment for such series to be made in cash on the next succeeding sinking
fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series,
by public or private purchase as negotiated by the Company, in the open
market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the
principal amount thereof.
<PAGE> 197
ARTICLE 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest
on, the Securities of each series on the dates and in the manner provided
herein and in the Securities. In the event the Company is not the Paying
Agent, principal and interest will be considered paid on the date due if
the Trustee or Paying Agent holds on that date money deposited by the
Company designated for and sufficient to pay all principal and interest
then due. In the event the Company is the Paying Agent, principal and
interest will be considered paid on the date actual payment is mailed to
the Holders entitled to such payments.
(b) The Company will pay interest on overdue principal at
the applicable interest rate on the Securities of each series as determined
in accordance with Section 3.01 hereof.
Section 6.02 Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment
for any series of Securities, in New York, New York, an office or agency
(which may be an office of the Trustee or the Registrar) where Securities
of such series may be presented or surrendered for payment, where
Securities of that series may be presented for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of
the Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company fails to maintain any such required office or agency or fails to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Securities of each series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in
accordance with this Section 6.02.
<PAGE> 198
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original
principal amount of the Securities of any series is Outstanding, the
Company will (i) remain subject to the requirements of Section 13 or 15(d)
of the Exchange Act whether or not it is required to do so by the
provisions thereof and will file with the SEC all periodic reports as may
be required thereunder and (ii) file with the SEC and the Trustee within 15
days after the Company is required to file the same with the SEC, copies of
the periodic reports which the Company may be required to file with the SEC
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. The Company
will also make such reports available to the Holders, prospective
purchasers of the Securities of any such series, securities analysts and
broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the
original principal amount of the Securities of any series is Outstanding
and (ii) the Company is not required to file with the SEC such reports and
other information referred to in Section 6.03(a) hereof, the Company will
furnish to the Trustee (A) within 120 days after the end of each fiscal
year, annual reports containing the information required to be contained in
Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B)
within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to
be contained in the Quarterly Report on Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form and (C) promptly from the time after the
occurrence of an event which would be required to be reported in the
Current Report on Form 8-K if the Company was required to file such Report,
such other reports containing information required to be contained in the
Current Report on Form 8-K promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other
provisions of TIA Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its
own Paying Agent with respect to any series of Securities, it will, not
less than one Business Day before each due date of the principal of or
interest on any of the Securities of any series, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums will be paid
to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure to so act.
<PAGE> 199
(b) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will, not less
than one Business Day before each due date of the principal of or interest
on, any Securities of any series, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for
the payment of the principal of or interest on Securities of such
series in trust for the benefit of the Holders of such series of Securities
and the Trustee entitled thereto until such sums will be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any
Default by the Company in the making of any payment of principal or interest;
(iii) at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(iv) acknowledge, accept and
agree to comply in all aspects with the provisions of this Indenture
relating to the duties, rights and disabilities of such Paying Agent.
(d) The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which
sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
(e) Except as provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on
any Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
<PAGE> 200
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do know of a Default
or an Event of Default, the Officers' Certificate will describe the Default
or Event of Default and the action the Company is taking or proposes to
take with respect thereto.
(b) The Company will give prompt written notice to
the Trustee of the occurrence of any Default or Event of Default.
Section 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company, in each case except to
the extent the failure to do so would not have, in the judgment of
management, a material adverse effect on the Company and its Subsidiaries
taken as a whole.
<PAGE> 201
Section 6.08 Insurance
The Company will maintain and will cause each of its
Subsidiaries to maintain (either in the name of the Company or in such
Subsidiary's own name) with third party insurance companies or pursuant to
self-insurance, (i) insurance on all their respective properties, (ii)
public liability insurance against claims for personal injury or death as a
result of the use of any products sold by it and (iii) insurance coverage
against other business risks, in each case, in at least such amounts and
against at least such other risks (and with such risk retention) as are
usually and prudently insured against in the same general area by companies
engaged in the same or a similar business.
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse affect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
Section 6.11 Prohibition on Issuance of Other Subordinated Indebtedness
Senior to the Securities
The Company will not create, incur or suffer to exist any
indebtedness that is expressly subordinated by the terms of the instrument
evidencing such indebtedness or pursuant to which such indebtedness is
issued in right of payment to any Senior Indebtedness unless such
indebtedness is pari passu with the Securities or subordinate in right of
payment to the Securities pursuant to provisions substantially similar to
those contained in Article 16 hereof.
<PAGE> 202
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially
all of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing, and (iii) the Company will have
delivered to the Trustee prior to the consummation of the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
<PAGE> 203
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events (whatever
the reason for such Event of Default and whether it will be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the failure by the Company to pay
interest on any Security of that series when the same becomes
due and payable and the continuance of any such failure for a
period of 30 days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes
due and payable at maturity, upon acceleration or otherwise;
(iii) the failure by the Company to
make any sinking fund payment when the same becomes due and
payable by the terms of a Security of that series and Article 5
hereof;
(iv) the failure by the Company to comply
with any of its agreements or covenants in, or provisions of,
the Security of that series or this Indenture (other than an
agreement or covenant a default in whose performance or
whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that
series) and such failure continues for the period and after the
notice specified below;
(v) the acceleration of any indebtedness
(other than Non-Recourse Indebtedness) for borrowed money or
guarantees thereof of the Company or any of its Subsidiaries
that has an outstanding principal amount of $5,000,000 or
more in the aggregate; provided that, in the event any such
acceleration is withdrawn or otherwise rescinded within a
period of five days after such acceleration by the holders of
such indebtedness, any Event of Default under this Section
8.01(a)(v) will be deemed to be cured and any acceleration
hereunder will be deemed withdrawn or rescinded;
<PAGE> 204
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect
of indebtedness (other than Non-Recourse Indebtedness) for
borrowed money or guarantees thereof of the Company or any of its
Subsidiaries with an outstanding aggregate amount of $5,000,000 or
more within five days of such principal or interest payment
becoming due and payable (after giving effect to any applicable
grace period set forth in the documents governing such
indebtedness);
(vii) a final judgment or judgments that exceed
$5,000,000 or more in the aggregate, for the payment of money,
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment
or judgments is not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(viii) the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an
order for relief against it in an involuntary
case,
(C) consents to the appointment of
a Custodian of it or for all or substantially
all of its property, or
(D) makes a general assignment for
the benefit of its creditors;
(ix) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the
Company or any Material Subsidiary as
debtor in an involuntary case,
(B) appoints a Custodian of the
Company or any Material Subsidiary or a
Custodian for all or substantially all of the
property of the Company or any
Material Subsidiary, or
(C) orders the liquidation of the
Company or any Material Subsidiary,
and the order or decree remains unstayed and in effect
for 60 days; or
<PAGE> 205
(x) any other Event of Default provided
with respect to Securities of that series.
(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives
written notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding
Securities of all series affected thereby notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." If such a Default is cured within such time period, it ceases.
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with
respect to the Company specified in clause (viii) or (ix) of Section
8.01(a) hereof) occurs and is continuing, the Trustee (after receiving
indemnities from the Holders to its satisfaction) by notice to the Company,
or the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of such series by notice to the Company and the
Trustee, may declare all Outstanding Securities of such series to be due
and payable immediately. Upon such declaration, the amounts due and payable
on the Securities of such series, as determined in Section 8.02(b) hereof,
will be due and payable immediately. If an Event of Default specified in
clause (viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will
ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee
and the Company may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
or interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent
of the principal amount of the Securities of such series (or in the case of
a default under Section 8.01(a)(ii) or (iv) hereof resulting from a breach
of the covenant set forth in Section 6.16 hereof, 101 percent of the
principal amount of the Securities of such series) will become due and
payable plus accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal or interest on the Securities of any
series or to enforce the performance of any provision of the Securities of
any series or this Indenture.
<PAGE> 206
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
Section 8.05 Control by Majority
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.06 Limitations on Suits
(a) A Holder may pursue a remedy with respect to
this Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee
written notice of a continuing Event of Default with respect
to the Securities of that series;
(ii) the Holder(s) of at least 25
percent in aggregate principal amount of all of the Outstanding
Securities of that series make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer to the
Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
<PAGE> 207
(iv) the Trustee does not comply with the
request within 60 days after receipt of the request and the
offer of indemnity; and
(v) during such 60-day period the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of such series do not give the Trustee a direction
inconsistent with the request.
(b) A Holder of a Security of any series may not use
this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder.
Section 8.08 Collection Suit by Trustee
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company, its creditors or property and will be
entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee, and in the event that the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
<PAGE> 208
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 9.07 hereof. Nothing contained
herein will be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 8.10 Priorities
(a) Subject to Article 16 hereof, in the event the
Trustee collects any money pursuant to this Article 8, it will pay out the
money in the following order:
FIRST: to the Trustee for amounts due under Section
9.07 hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
THIRD: to the Company or such other Person legally
entitled thereto.
(b) The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
Section 8.12 Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
<PAGE> 209
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations will be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates
or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof,
the Trustee will examine the certificates and opinions to
determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 9.01(c) does not limit the effect
of Section 9.01(b) hereof;
(ii) the Trustee will not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the Trustee will not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 9.05 hereof or
when exercising any other trust or power conferred upon the
Trustee under this Indenture.
<PAGE> 210
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. Subject to Section 9.03 hereof, all
money received from the Trustee will, until applied as herein provided, be
held in trust for the payment of principal and interest on the Securities.
(f) The Trustees shall not be required to give any bond
or surety in respect of the exercise of its powers and performance of its
duties hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated
in the document but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee determines to make such further
inquiry or investigation, it will be entitled to examine the
books, records, and premises of the Company, personally or by
agent or attorney;
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate. The Trustee may
consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(iii) the Trustee may act through agents and will not
be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds deposited
with it or in an account within its dominion and control;
<PAGE> 211
(iv) the Trustee will not be liable for any action
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by
this Indenture; and
(v) unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise
and may refuse to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication.
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of such Holders.
Section 9.06 Reports by Trustee to Holders
(a) Within 60 days after each ______, beginning with
____________, the Trustee will mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a); provided,
however, if no event described in TIA Section 313(a) has occurred within
such calendar year, no report need be transmitted. The Trustee also will
comply with TIA Sections 313(b) and 313(c).
<PAGE> 212
(b) A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on
which the Securities of any series are listed. The Company will notify the
Trustee when the Securities of any series are listed on any stock exchange.
Section 9.07 Compensation and Indemnity
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including, without
limitation, the reasonable compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its
part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee with respect
to any series of Securities and appointment of a successor Trustee will
become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 9.08.
<PAGE> 213
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the Outstanding Securities of any series
may remove the Trustee with respect to such series by so notifying the
Trustee and the Company. The Company may remove the Trustee with respect to
any series of Securities if:
(i) the Trustee fails to comply with
Section 9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or
an insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee with respect to any series of Securities
for any reason, the Company will promptly appoint a successor Trustee.
(d) If a successor Trustee with respect to any series of
Securities does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of
at least ten percent in principal amount of the Outstanding Securities of
any series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(e) If the Trustee with respect to any series of
Securities fails to comply with Section 9.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee with
respect to such series.
(f) A successor Trustee with respect to any series of
Securities will deliver a written acceptance of its appointment to the
retiring Trustee with respect to such series and to the Company. Thereupon
the resignation or removal of the retiring Trustee will become effective,
and the successor Trustee will have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee will mail a notice
of its succession to the Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 9.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 9.08, the Company's
obligations under Section 9.07 hereof will continue for the benefit of the
retiring Trustee.
<PAGE> 214
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee with
respect to any series of Securities consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act will
be the successor Trustee; provided that in the case of a transfer of all or
substantially all of its corporate trust business to another corporation,
the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
(b) In case any Securities of any series have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of
the United States, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trustee power, (ii) be
subject to supervision or examination by federal or state (or the District
of Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee is subject to TIA Section 310(b). If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 9.10, it
will resign immediately in the manner and with the effect specified in
Section 9.08 hereof.
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
<PAGE> 215
(i) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of such series of Securities as
of the Regular Record Date of such Interest Payment Date;
and
(ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.02 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series,
<PAGE> 216
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.10, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.10 inclusive, and any other
covenants specified in or pursuant to this Indenture) and 8.01(a)(x) shall
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(x), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
<PAGE> 217
Section 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, (1) the principal
of and interest on the Securities of such series on the respective
Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable
in accordance with the terms of this Indenture and such
Securities; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to such
Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 4.02 hereof, a notice of its
election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the
Securities of such series and Article 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date first set forth hereinabove, there has been
a change in the applicable Federal income tax law, in either case,
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes as
a result of such Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge
were not to occur.
<PAGE> 218
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as result of such Covenant
Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have
occurred and be continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default within
the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(viii) Notwithstanding any other provisions of this
Section, such Defeasance or Covenant Defeasance shall be effected
in compliance with any additional or substitute terms, conditions
or limitations in connection therewith pursuant to Section 3.01
hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been
complied with.
(x) No event or condition shall exist that, pursuant to
the provisions of Article 16 hereof, would prevent the Company
from making payments of the principal of or interest on the
Securities of such series on the date of such deposit or at any
time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
<PAGE> 219
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations (or
other property and any proceeds therefrom) held by it as provided in
Section 11.04 hereof with respect to Outstanding Securities of any
Defeasible Series that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance with respect to the Securities of such series.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 11 with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 11.05 hereof with respect to
Securities of such series in accordance with this Article 11; provided,
however, that if the Company makes any payment of principal of or interest
on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
<PAGE> 220
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series when
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 hereof, and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust
with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the
Company, as provided in Section 6.04 hereof) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) if redeemable at the option of
the Company, are to be called for redemption
within one year under arrangements satisfactory
to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
<PAGE> 221
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
ARTICLE 13
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities
in addition to certificated Securities;
(iv) to make any change that does not
adversely affect the legal rights hereunder
of any Holder of a Security of any series;
<PAGE> 222
(v) to add to the covenants of the Company
for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(vi) to add any additional Events of Default
for the benefit of the Holders of all or any series of
Securities (and if such Events of Default are to be for
the benefit of less then all series of Securities,
stating that such Events of Default are being included
solely for the benefit of such series);
(vii) to change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities; provided that any such addition,
change or elimination shall become effective only when
there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(viii) to establish the form or terms of
Securities of any series as permitted by Sections 2.01
and 3.01 hereof;
(ix) to secure the Securities pursuant to
the requirements of Section 6.18 hereof;
(x) to evidence and provide for the
acceptance of appointment hereunder of a successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of
Section 9.08 hereof;
(xi) to supplement any of the provisions of
the Indenture to such extent as shall be necessary to
implement the provisions of Article 11 hereof or
discharge of any series of Securities pursuant to
Sections 12.01, 12.02 and 12.03 hereof; provided that any
such action shall not adversely affect the interests of
the Holders of Securities of such series or any other
series in any material respect; or
<PAGE> 223
(xii) to comply with the qualification of this
Indenture under the TIA.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be contained therein. After an amendment or waiver
under this Section 13.01 becomes effective, the Company will mail to the
Holders of each Security affected thereby a notice describing the amendment
or waiver. Any failure of the Company to mail such notice, will not,
however, affect the validity of any such supplemental indenture.
Section 13.02 Supplemental Indentures With Consent of Holders
(a) Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each series
affected by such amendment.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.06 hereof, the Trustee will join with the
Company in the execution of such supplemental indenture.
(c) It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any
proposed amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
<PAGE> 224
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange
offer for Securities). However, without the consent of each Holder of an
Outstanding Security affected thereby, an amendment or waiver under this
Section 13.02 may not:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security or
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on
or after the redemption date or repayment date), or
(ii) reduce the percentage in principal amount
of the Outstanding Securities of any series, the consent
of whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify any of the provisions of this
Section or Section 8.07, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify any of the provisions of this
Indenture relating to the subordination of the Securities
in a manner adverse to the Holders.
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
<PAGE> 225
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required
from such Holder) may be subject to the requirement that such Holder has
been the Holder of record of any Securities of any series with respect to
which such consent is required or sought as of a date identified by the
Trustee in a notice furnished to Holders in accordance with the terms of
this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to such Holder's Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective. An amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any amendment or waiver. If the Company elects to fix a record date for
such purpose, the record date will be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 10.02 hereof or (ii) such other date as the Company
will designate. If a record date is fixed, then notwithstanding the
provisions of Section 13.04(a) hereof, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, will be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent will be valid or effective
for more than 90 days unless consents from Holders of the principal amount
of Securities required hereunder for such amendment or waiver to be
effective has also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless
it is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
<PAGE> 226
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
Section 13.07 Subordination Unimpaired
This Indenture may not be amended to alter the
subordination of any Outstanding Securities without the written consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
Section 14.02 Notices
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
<PAGE> 227
If to the Company:
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2000
Attention: Corporate Trust Administration
(b) The Company or the Trustee, by notice to the
other, may designate additional or different addresses for subsequent
notices or communications.
(c) All notices and communications will be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder
will be mailed by first-class, postage-prepaid mail, return receipt
requested, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any
defect in it will not affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the
manner provided above within the time prescribed, it is duly given, whether
or not the addressee receives it.
(f) If the Company mails a notice or communication
to Holders, it will mail a copy to the Trustee and each Agent at the
same time.
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
<PAGE> 228
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
The Trustee will fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
Global Security held by a Depository entitled under the procedures of such
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Persons who are such
beneficial owners at the close of business on such record date or their
duly appointed proxy or proxies will be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
actions, whether or not such Persons remain such beneficial owners after
such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action will be valid or effective if made,
given or taken more than six months after such record date.
Section 14.05 Proof of Execution of Instruments and Holding of
Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
<PAGE> 229
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds
to be recorded in such jurisdiction that the Person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other
officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where Securities
are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
(3) The ownership of Securities shall be
proved by the Securities Register for such Security
or by a certificate of the Registrar.
(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
<PAGE> 230
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) will
include:
(i) a statement that the Person making such
certificate or opinion has read such condition or
covenant;
(ii) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of such
Person, such Person has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has
been complied with.
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, or other Persons or firms deemed appropriate by
such counsel, unless such counsel has actual knowledge that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may be an
employee of the Company), or firm of accountants, unless such Officer or
counsel, as the case may be, has actual knowledge that the certificate or
opinion or representation with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous.
<PAGE> 231
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
<PAGE> 232
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying
Agent and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 14.19 Acceptance of Trust
IBJ Schroder Bank & Trust Company, the Trustee named
herein, hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to
be taken by Holders pursuant to any of the provisions of this Indenture;
(b) to remove the Trustee and appoint a successor
Trustee pursuant to the provisions of Section 9.08 hereof;
(c) to consent to the amendment of the provisions
contained herein and the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Article 13 hereof; or
(d) to take any other action authorized to be taken
by or on behalf of the Holders of any specified aggregate principal amount
of the Outstanding Securities under any other provision of this Indenture
or under applicable law.
<PAGE> 233
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, setting forth the time and
the place of such meeting and, in general terms, the action proposed to be
taken at such meeting, shall be mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
<PAGE> 234
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
ARTICLE 16
SUBORDINATION; SENIORITY
Section 16.01 Securities Subordinated to Senior Indebtedness
(a) The Company agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise agrees, that the
payment of the principal of, and interest on (including, without
limitation, interest accruing subsequent to the filing of a petition under
applicable Bankruptcy Law or the appointment of a Custodian), the
Securities of each series hereunder is subordinated and junior in right of
payment, to the extent and in the manner provided in this Article 16,
except as provided in Section 9.07, to the prior payment in full in cash or
Cash Equivalents or all Senior Indebtedness whether outstanding on the
Issue Date of the Securities of any series or created, incurred, assumed or
guaranteed thereafter. The Securities of any series shall rank senior to
the Company's 4 7/8% Convertible Subordinated Debentures due 2005 and shall
constitute "Senior Indebtedness" for the purposes of the Indenture, dated
as of November 3, 1993, between the Company and Marine Midland Bank, N.A.,
as trustee relating to such Convertible Subordinated Debentures.
(b) All the provisions of this Indenture and the
Securities of any series will be subject to the provisions of this Article
16 so far as they may be applicable thereto, except that nothing in this
Article 16 will apply to claims for, or payments to, the Trustee under or
pursuant to Section 9.07 hereof.
<PAGE> 235
Section 16.02 Company Not To Make Payments with Respect to
Securities in Certain Circumstances
(a) No payment will be made by the Company on account of
principal of or interest on the Securities of any series or on account of
the purchase, redemption or other acquisition of such Securities, if at the
time of such payment or immediately after giving effect thereto there will
have occurred and be continuing (i) a default in the payment of principal
of (or premium, if any, on) or interest on any Senior Indebtedness
continuing beyond the applicable period of grace, if any, specified in the
applicable instrument, lease, contract, agreement or other document
evidencing such Senior Indebtedness with respect to Senior Indebtedness in
an aggregate principal amount of not less than $5,000,000, or (ii) any
event of default with respect to Senior Indebtedness permitting the
acceleration thereof and such event of default is the subject of a judicial
proceeding or the Company receives written notice of such event of default
from the holders of an aggregate principal amount of not less than
$5,000,000 of such Senior Indebtedness (provided, however, that in the case
of Senior Indebtedness issued pursuant to an indenture, such notice may be
validly given only by the trustee under such indenture), unless and until
such default or event of default has been cured or waived or ceases to
exist; provided, further, that the foregoing will not prohibit payments
made pursuant to Articles 11 or 12 hereof from monies deposited with the
Trustee pursuant thereto prior to any such default, judicial proceeding or
notice.
(b) Upon any acceleration of the principal of the
Securities of any series or any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution or winding up or
liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior Indebtedness
(including, without limitation, interest accruing subsequent to the filing
of a petition under applicable Bankruptcy Law or the appointment of a
Custodian) will first be paid in full in cash or Cash Equivalents, or
payment thereof provided for, before any payment is made on account of the
principal of or interest on the Securities (except payments made pursuant
to Articles 11 or 12 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such dissolution, winding up, liquidation
or reorganization); and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee would be
entitled except for the provisions of this Article 16, will (except as
aforesaid) be paid by the Company or by any Custodian or other Person, or
by the Holders or the Trustee, making such payment or distribution directly
to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
<PAGE> 236
issued, as their respective interests may appear, to the extent necessary
so that the holders of all Senior Indebtedness have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Trustee.
(c) If the Trustee or any Holder does not file a proper
claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for
or on behalf of the Trustee or such Holder.
(d) In the event that, notwithstanding the foregoing, any
payment by or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, is received by the Trustee or the Holders before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, or provision is
made for such payment in cash or Cash Equivalents, such payment or
distribution will be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay the
holders of all Senior Indebtedness in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, and, until so delivered, the same will
be held in trust by the Trustee or any Holder as the property of the
holders of Senior Indebtedness (but subject to the power of a court of
competent jurisdiction to make other equitable provision, which will have
been determined by such court to give effect to the rights conferred in
this Article 16 upon the Senior Indebtedness and the holders thereof with
respect to the Securities or the Holders or the Trustee, by a lawful plan
of reorganization or readjustment under applicable Bankruptcy Laws). The
Trustee will not have any obligation or duty to recover any such amounts so
distributed.
(e) The consolidation of the Company with, or the merger
of the Company into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 7 hereof will not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of
this Section 16.02 if such other corporation will, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 7 hereof. Nothing in this Section 16.02 will apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.07
hereof.
<PAGE> 237
(f) The holders of Senior Indebtedness may, at any time
and from time to time, without the consent of, or notice to, the Holders or
the Trustee, without incurring responsibility to the Holders or the Trustee
and without impairing or releasing the rights of any holder of Senior
Indebtedness or in any way altering or affecting any of the provisions of
this Article 16: (i) change the amount, manner, place or terms of payment
or change or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding, (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness, (iii) release any Person liable in any manner for the
collection of Senior Indebtedness, and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 16.03 Subrogation of Securities
(a) Subject to the payment in full of all Senior
Indebtedness at the time outstanding, the Holders will be subrogated
(without any duty on the part of the holders of Senior Indebtedness to
warrant, create, effectuate, preserve or protect each subrogation) to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness until the principal of and interest on the
Securities of each series will be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders or
the Trustee on their behalf would be entitled except for the provisions of
this Article 16, and no payments over pursuant to the provisions of this
Article 16, to the holders of Senior Indebtedness by Holders or the Trustee
on their behalf will, as between the Company, its creditors (other than
holders of Senior Indebtedness), and the Holders, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article 16 are and are intended
solely for the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of Senior Indebtedness, on the other.
(b) Nothing contained in this Article 16 or elsewhere in
this Indenture or in the Securities of any series is intended to or will
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities of each series as and when the same will become
due and payable in accordance with their terms, or is intended to or will
affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor will anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 16 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
<PAGE> 238
(c) Upon any payment or distribution of assets of the
Company referred to in this Article 16, the Trustee and the Holders will be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or certificate of the Custodian or
other Person making such payment or distribution, delivered to the Trustee
or to the Holders, for the purpose of ascertaining the holders of Senior
Indebtedness and other Indebtedness of the Company and the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 16.
Section 16.04 Authorization by Holders
Each Holder by such Holder's acceptance of a Security of
any series authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate, as
between the Holder and the holders of Senior Indebtedness, the
subordination provided in this Article 16 and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.
Section 16.05 Notices to Trustee
(a) The Company will give prompt written notice in the
form of an Officers' Certificate to the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16. Notwithstanding the provisions of this
Article 16 or any other provision of this Indenture, the Trustee will not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this
Article 16, unless and until the Trustee will have received at its
Corporate Trust Office written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from a representative or trustee
therefor; provided, that in the case of Senior Indebtedness issued pursuant
to an indenture, such notice may be validly given only by the trustee under
such indenture; and before the receipt of any such written notice, the
Trustee will be entitled in all respects to assume that no such facts
exist; provided further that if the Trustee will not have received, at
least three Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security of
any series), with respect to such monies, the notice provided for in this
Section 16.05, then, anything herein contained to the contrary
notwithstanding, the Trustee will have the full power and authority to
receive such monies and to apply the same to the purpose for which they
were received and will not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
<PAGE> 239
(b) The Trustee will be entitled to rely on the delivery
to it of a written notice by a Person representing himself or herself to be
a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or a representative on behalf of any such holder.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant
to this Article 16, the Trustee may request such Person to provide evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 16, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
such payment.
(c) Notwithstanding anything to the contrary hereinbefore
set forth, nothing will prevent any payment by the (i) Company or the
Trustee to the Holders of monies in connection with a redemption of
Securities of any series if (A) notice of such redemption had been given
pursuant to Article 4 hereof prior to the receipt by the Company or the
Trustee, as applicable, of written notice as aforesaid, and (B) such notice
of redemption is given not earlier than 60 days before the redemption date,
or (ii) Trustee to the Holders of amounts deposited with it pursuant to
Articles 11 or 12 hereof.
(d) The Company agrees that if any default occurs with
respect to any Senior Indebtedness, which default permits the holders of
such Senior Indebtedness to accelerate the maturity thereof, the Company
will give prompt notice in writing of such happening to all known holders
of Senior Indebtedness and will certify to each such holder the name of the
Trustee and current notice address.
Section 16.06 Trustee's Relation to Senior Indebtedness
(a) The Trustee in its individual capacity will be
entitled to all the rights set forth in this Article 16 in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 9.03 or elsewhere in
this Indenture will deprive the Trustee of any of its rights as such
holder.
(b) With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 16, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness will be read into this Indenture against the Trustee. The
Trustee will not owe any fiduciary duty to the holders of Senior
Indebtedness but will have only such obligations to such holders as are
expressly set forth in this Article 16.
<PAGE> 240
Section 16.07 No Impairment of Subordination
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided will at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by an act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 16.08 Article 16 Not to Prevent Events of Default
No provision of this Article 16 will prevent the
occurrence of an Event of Default hereunder.
Section 16.09 Paying Agents Other Than the Trustee
In any case at any time any Paying Agent other than the
Trustee has been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 16 will in such case (unless the
context will otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such place of the Trustee; provided, however, that Sections 16.05 and
16.06 hereof will not apply to the Company or any Subsidiary if it acts as
Paying Agent.
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
-----------------------------
Thomas A. Napoli
Vice President - Finance and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Name:
Title:
<PAGE> 241
EXHIBIT 4.3
FORM OF
SUBORDINATED INDENTURE,
dated as of _______ __, 199_,
between
U.S. HOME CORPORATION
and
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
<PAGE> 242
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
-------- -------------------
310(a)(1)............................ 9.10
(a)(2).......................... 9.10
(a)(3).......................... N.A.
(a)(4).......................... N.A.
(b)............................. 9.08; 9.10
(c)............................. N.A.
311(a)............................... 9.11
(b)............................. 9.11
(c)............................. N.A.
312 (a)............................. 10.01; 10.02
(b)............................. 10.02; 14.03
(c)............................. 10.02
313(a)............................... 9.06
(b)(1).......................... 9.06
(b)(2).......................... 9.06
(c)............................. 9.06
(d)............................. 9.06
314(a)............................... 6.03
(b)............................. N.A.
(c)(1).......................... 14.04; 14.05
(c)(2).......................... 14.04; 14.05
(c)(3).......................... 14.05
(d)............................. N.A.
(e)............................. 14.05
(f)............................. N.A.
315(a).............................. 9.01
(b)............................. 9.05
(c)............................. 9.01
(d)............................. 9.01
(e)............................. 8.11
<PAGE> 243
316(a)(last sentence)................ 8.05
(a)(1)(A)....................... 8.05
(a)(1)(B)....................... 8.04
(a)(2).......................... Not applicable
(b)............................. 8.07
317(a)(1)............................ 8.08
(a)(2).......................... 8.09
(b)............................. 3.05
318(a)............................... 14.01
N.A. means not applicable
Note: This cross-reference table will not, for any purpose,
be deemed to be a part of this Indenture.
<PAGE> 244
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Rules of Construction 1
Section 1.02 Definitions 2
Affiliate 2
Agent 2
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Stock 2
Cash Equivalents 2
Common Equity 3
Company 3
Company Request or Company Order 3
Corporate Trust Office of the Trustee 3
Covenant Defeasance 3
Custodian 3
Default 3
Defaulted Interest 3
Defeasance 3
Defeasible Series 3
Depository 3
DTC 3
Event of Default 3
Exchange Act 3
Fair Market Value 4
GAAP 4
Global Security 4
Holder 4
Indenture 4
Interest Payment Date 4
Issue Date 4
Legal Holiday 4
Material Subsidiary 4
Maturity 4
Non-Recourse Indebtedness 5
Officer 5
<PAGE> 245
Officers' Certificate 5
Opinion of Counsel 5
Outstanding 5
Paying Agent 6
Person 6
Place of Payment 6
Registered Security 6
Registrar 6
Regular Record Date 6
SEC 6
Securities 6
Security Register 6
Senior Indebtedness 6
Special Record Date 7
Stated Maturity 7
Subsidiary 7
Successor 7
TIA 7
Trustee 7
Trust Officer 8
U.S. Government Obligations 8
Section 1.03 Incorporation by Reference of TIA 8
ARTICLE 2 SECURITY FORMS 8
Section 2.01 Forms Generally 8
Section 2.02 Form of Legend for Global Securities 9
Section 2.03 Form of Trustee's Certificate of
Authentication 9
ARTICLE 3 THE SECURITIES 10
Section 3.01 Amount Unlimited; Issuable in Series 10
Section 3.02 Denominations 13
Section 3.03 Execution, Authentication, Delivery
and Dating 13
Section 3.04 Temporary Securities 14
Section 3.05 Registration, Registration of
Transfer and Exchange 15
Section 3.06 Mutilated, Destroyed, Lost and Stolen
Securities 18
Section 3.07 Payment of Interest; Interest Rights
Preserved 19
Section 3.08 Persons Deemed Owners 20
Section 3.09 Cancellation 21
Section 3.10 Computation of Interest 21
<PAGE> 246
ARTICLE 4 REDEMPTION 21
Section 4.01 Applicability of Article 21
Section 4.02 Election to Redeem; Notice to
Trustee 21
Section 4.03 Selection of Securities to Be
Redeemed 22
Section 4.04 Notices to Holders 22
Section 4.05 Effect of Notice of Redemption 23
Section 4.06 Deposit of Redemption Price 23
Section 4.07 Securities Redeemed in Part 23
Section 4.08 Optional Redemption 23
ARTICLE 5 SINKING FUNDS 24
Section 5.01 Applicability of Article 24
Section 5.02 Satisfaction of Sinking Fund
Payments with Securities 24
Section 5.03 Redemption of Securities for Sinking
Fund 24
ARTICLE 6 COVENANTS 26
Section 6.01 Payment of Securities 26
Section 6.02 Maintenance of Office or Agency 26
Section 6.03 SEC Reports; Financial Statements 27
Section 6.04 Money for Security Payments to Be
Held in Trust 27
Section 6.05 Compliance Certificate 29
Section 6.06 Corporate Existence, etc. 29
Section 6.07 Payment of Taxes and Other Claims 29
Section 6.08 Insurance 29
Section 6.09 Stay, Extension and Usury Laws 30
Section 6.10 Maintenance of Properties 30
ARTICLE 7 SUCCESSORS 30
Section 7.01 Limitations on Mergers and
Consolidations 30
Section 7.02 Successor Corporation Substituted 31
ARTICLE 8 DEFAULTS AND REMEDIES 31
Section 8.01 Events of Default 31
Section 8.02 Acceleration 33
Section 8.03 Other Remedies 34
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture
Provisions 34
Section 8.05 Control by Majority 34
Section 8.06 Limitations on Suits 35
Section 8.07 Rights of Holders to Receive Payment 35
<PAGE> 247
Section 8.08 Collection Suit by Trustee 35
Section 8.09 Trustee May File Proofs of Claim 36
Section 8.10 Priorities 36
Section 8.11 Undertaking for Costs 36
Section 8.12 Restoration of Rights and Remedies 37
ARTICLE 9 TRUSTEE 37
Section 9.01 Duties of Trustee 37
Section 9.02 Rights of Trustee 38
Section 9.03 Individual Rights of Trustee 39
Section 9.04 Trustee's Disclaimer 39
Section 9.05 Notice Defaults 39
Section 9.06 Reports by Trustee to Holders 40
Section 9.07 Compensation and Indemnity 40
Section 9.08 Replacement of Trustee 41
Section 9.09 Successor Trustee by Merger, etc. 42
Section 9.10 Eligibility; Disqualification 42
Section 9.11 Preferential Collection of Claims
Against Company 42
ARTICLE 10 HOLDERS' LISTS 43
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders 43
Section 10.02 Preservation of Information 43
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE 43
Section 11.01 Company's Option to Effect Defeasance
or Covenant Defeasance 43
Section 11.02 Defeasance and Discharge 44
Section 11.03 Covenant Defeasance 44
Section 11.04 Conditions to Defeasance or Covenant
Defeasance 45
Section 11.05 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions 47
Section 11.06 Reinstatement 47
ARTICLE 12 SATISFACTION AND DISCHARGE 48
Section 12.01 Satisfaction and Discharge of
Indenture 48
Section 12.02 Application of Trust Money 49
ARTICLE 13 SUPPLEMENTAL INDENTURES 49
Section 13.01 Supplemental Indentures Without
Consent of Holders 49
Section 13.02 Supplemental Indentures With Consent
of Holders 51
Section 13.03 Compliance With TIA 52
Section 13.04 Revocation and Effect of Consents 52
<PAGE> 248
Section 13.05 Notation on or Exchange of Securities 53
Section 13.06 Trustee to Sign Amendments, etc. 53
Section 13.07 Subordination Unimpaired 53
ARTICLE 14 MISCELLANEOUS 54
Section 14.01 TIA Controls 54
Section 14.02 Notices 54
Section 14.03 Communication by Holders With
Other Holders 55
Section 14.04 Action by Securityholders 55
Section 14.05 Proof of Execution of Instruments
and Holding of Securities 56
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities 56
Section 14.07 Certificate and Opinion as to
Conditions Precedent 57
Section 14.08 Statements Required in Certificate
or Opinion 57
Section 14.09 Rules by Trustee and Agents 58
Section 14.10 No Recourse Against Others 58
Section 14.11 Governing Law 58
Section 14.12 No Adverse Interpretation of Other
Agreements 58
Section 14.13 Successors 58
Section 14.14 Severability 59
Section 14.15 Counterpart Originals 59
Section 14.16 Trustee as Paying Agent and Registrar 59
Section 14.17 Table of Contents, Headings, etc. 59
Section 14.18 Benefits of Indenture 59
Section 14.19 Acceptance of Trust 59
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES 59
Section 15.01 Purposes of Meetings 59
Section 15.02 Call of Meetings by Trustee 60
Section 15.03 Call of Meetings by Company or
Securityholders 60
Section 15.04 Person Entitled to Vote at Meeting 60
Section 15.05 Regulations for Meeting 61
ARTICLE 16 SUBORDINATION; SENIORITY 61
Section 16.01 Securities Subordinated to Senior
Indebtedness 61
Section 16.02 Company Not To Make Payments with
Respect to Securities in Certain
Circumstances 62
Section 16.03 Subrogation of Securities 64
Section 16.04 Authorization by Holders 65
Section 16.05 Notices to Trustee 65
Section 16.06 Trustee's Relation to Senior
Indebtedness 66
Section 16.07 No Impairment of Subordination 66
Section 16.08 Article 16 Not to Prevent Events of
Default 67
Section 16.09 Paying Agents Other Than the Trustee 67
<PAGE> 249
INDENTURE, dated as of _______ __, 199_, between U.S.
Home Corporation, a Delaware corporation, and IBJ Schroder Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises
and the acquisition of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Rules of Construction
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and
transactions.
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Section 1.02 Definitions
Capitalized terms used herein will have the following
respective meanings when used herein:
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this Indenture, each executive
officer and director of the Company will be an Affiliate of the Company. In
addition, for purposes of this Indenture, control of a Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means title 11 of the United States
Code, as amended, or any similar federal or state law for the relief of
debtors.
"Board of Directors" means the board of directors of a
Person or any authorized committee of the board of directors of such
Person.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares,
rights to purchase, warrants or options (whether or not currently
exercisable), participations, or other equivalents of or interests in
(however designated) the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests)
of such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Cash Equivalents" means any of the following, to the
extent owned by the Company, free and clear of all liens and having a
maturity of not greater than 90 days from the date of issuance thereof: (i)
readily marketable direct obligations of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the United States, (ii) insured certificates of
deposit of or time deposits with any commercial bank that is (a) a member
of the Federal Reserve System, (b) issues (or the parent of which issues)
commercial paper rated as described in clause (iii) below, (c) is organized
under the laws of the United States or any State thereof and (d) has
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combined capital and surplus of at least $1,000,000,000 or (iii) commercial
paper in an aggregate amount of no more than $5,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States or the District of Columbia that is not
an Affiliate of the Company and rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investor Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Corporation.
"Common Equity" of any Person means all Capital Stock of
such Person that is generally entitled (i) to vote in the election of
directors of such Person, or (ii) if such Person is not a corporation, to
vote or otherwise participate in the selection of the governing body,
partners, managers or others that will control the management and policies
of such Person.
"Company" means U.S. Home Corporation, a Delaware
corporation, and any successor thereof.
"Company Request or Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its President, its Senior Vice President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" will be at the
address of the Trustee specified in Section 14.02 hereof or such other
address as the Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in
Section 11.03 hereof.
"Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or
after notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in
Section 3.07 hereof.
"Defeasance" has the meaning set forth in Section 11.02
hereof.
"Defeasible Series" has the meaning set forth in
Section 11.01 hereof.
"Depository" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depository for such Securities as contemplated by
Section 3.01.
"DTC" has the meaning set forth in Section 2.02 hereof.
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"Event of Default" has the meaning set forth in
Section 8.01(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" with respect to any asset or property
means the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect on
the Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depository for such Securities or a
nominee thereof.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the TIA that are deemed to
be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
3.01 hereof.
"Interest Payment Date", when used with respect to a
Security of any series, means the Stated Maturity of an installment of
interest on such Security.
"Issue Date" means the date of original issuance of the
Securities of each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which
banking institutions in New York, New York or at a Place of Payment are
authorized or obligated by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a Place of Payment, payment
shall be made at that place on the next succeeding day that is not a Legal
Holiday.
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"Material Subsidiary" has the meaning set forth in the
Indenture, dated as of June 21, 1993, between the Company and IBJ Schroder
Bank & Trust Company, as trustee, relating to the Company's 9 3/4% Senior
Notes due 2003 as in effect on the date hereof.
"Maturity", when used with respect to a Security of any
series, means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Non-Recourse Indebtedness" has the meaning set forth in
the Indenture, dated as of June 21, 1993, between the Company and IBJ
Schroder Bank & Trust Company, as trustee, relating to the Company's 9 3/4%
Senior Notes due 2003 as in effect on the date hereof.
"Officer" means the Chairman of the Board, the President,
the Senior Vice President, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President
of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or
Co-Chief Executive Officer), Chief Operating Officer, Chief Financial
Officer or Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
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(iii) Securities as to which the Defeasance has been
effected pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities has
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any interest on any Securities of any series.
"Person" means any individual, corporation, partnership,
joint venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the principal of
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01 hereof.
"Registered Security" means any Security established
pursuant to Section 3.01 hereof which is registered in the Security
Register.
"Registrar" has the meaning set forth in Section 3.05 hereof.
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"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"SEC" means the Securities and Exchange Commission, and any
successor thereto.
"Securities" has the meaning set forth in the first
recital of this Indenture and more particularly means any securities of any
series authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in
Section 3.05 hereof.
"Senior Indebtedness" means the principal of (premium, if
any) and interest on (including, without limitation, interest accruing
subsequent to the filing of a petition under applicable Bankruptcy Law or
the appointment of a Custodian), (i) any and all indebtedness and
obligations of the Company (including indebtedness of others guaranteed by
the Company), whether or not contingent and whether or not outstanding on
the Issue Date of the Securities of any series or thereafter created,
incurred or assumed, including, without limitation, all charges, fees,
expenses (including, without limitation, reasonable attorneys' fees and
expenses and other amounts incurred by or owing to holders of such
indebtedness), which (a) is for money borrowed, (b) is evidenced by any
bond, note, debenture or similar instrument, (c) represents the unpaid
balance on the purchase price of any property, business or asset of any
kind, (d) is an obligation of the Company as lessee under any and all
leases of property, equipment or other assets required to be capitalized on
the balance sheet of the lessee under GAAP, (e) is a reimbursement
obligation of the Company with respect to letters of credit, (f) is an
obligation of the Company with respect to an interest swap obligation or a
foreign exchange agreement or (g) is an obligation of another secured by a
lien to which any of the properties or assets (including, without
limitation, leasehold interests and any other tangible or intangible
property rights) of the Company are subject, whether or not the obligation
secured thereby will have been assumed by the Company or will otherwise be
the Company's legal liability and (ii) any deferrals, amendments, renewals,
extensions, modifications and refundings of any indebtedness or obligations
of the types referred to above; provided that Senior Indebtedness will not
include (A) the (x) Securities of any series or (y) the Company's 4-7/8%
Convertible Subordinated Debentures due 2005, (B) any indebtedness or
obligation of the Company (or the instrument creating or evidencing it)
which expressly provides that such indebtedness is not superior in right of
payment to the Securities of any series or which expressly provides that
such indebtedness is subordinate in right of payment to all other
indebtedness of the Company (including the Securities of any series), (C)
any indebtedness or obligation of the Company to any of its Subsidiaries
and (D) any indebtedness or obligation incurred by the Company in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
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"Special Record Date" for the payment of any Defaulted
Interest on any Security means a date fixed by the Trustee pursuant to
Section 3.07 hereof.
"Stated Maturity", when used with respect to any Security
of any series or any installment of principal thereof or interest thereon,
means the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of
which at least a majority of the aggregate voting power of all classes of
the Common Equity is directly or indirectly beneficially owned by such
Person, and (ii) any entity other than a corporation of which such Person
directly or indirectly beneficially owns at least a majority of the Common
Equity.
"Successor" has the meaning set forth in Section 7.01(a)
hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to the Securities of
that series.
"Trust Officer" means any Senior Vice President, Vice
President, Assistant Vice President, Assistant Secretary or Assistant
Treasurer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"U.S. Government Obligations" means (i) any security that
is (a) a direct obligation of the United States for the payment of which
full faith and credit of the United States is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
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Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by or pursuant to this Indenture or
any indenture supplemental hereto and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may, consistent herewith, be determined by the Officers
executing such Security as evidenced by their execution of such Security.
If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy thereof shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 hereof for the authentication and delivery of such Securities.
If all of the Securities of any series established by action taken pursuant
to a Board Resolution are not to be issued at one time, it shall not be
necessary to deliver a copy thereof at the time of issuance of each
Security of such series, but such Board Resolution shall be delivered at or
prior to the time of issuance of the first Security of such series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any
other manner, all as determined by the Officers of the Company executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF TRANSFER OR,
OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED ABOVE.
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INSASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[Name of Trustee]
------------------------------
As Trustee
By.............................
Authorized Officer
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03 hereof, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series the
following:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
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(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 4.07 or 13.05 hereof and except for any
Securities which, pursuant to Section 3.03 hereof, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such
date or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which
such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Security on any Interest
Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated
if other than on the basis of actual days elapsed over a 365 or
366-day year;
(6) the place or places, if any, other than or in
addition to New York, New York, where the principal of and
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the same series may be surrendered for
exchange and, if different from the location specified in Section
14.02 hereof, the place or places where notices or demands to or
upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within, the price or prices
at and the terms and conditions upon, which Securities of the series
may be redeemed or purchased, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to
redeem or repurchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities
of the series shall be redeemed or repurchased, in whole or in part,
pursuant to such obligation;
<PAGE> 260
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and interest on any Securities of the
series shall be payable if other than the currency of the United
States and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of
"Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities of
the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount of the
Securities of any series, the portion of the principal amount of
such Securities which shall be payable upon declaration of
acceleration of the Maturity thereof;
(14) if applicable, that the Securities of the series
shall be defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depository or
Depositories for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.05 hereof in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of,
a Person other than the Depository for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
<PAGE> 261
(17) if other than the Trustee, the identity of each
Paying Agent and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 3.03 hereof) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company.
<PAGE> 262
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as
permitted by Sections 2.01 and 3.01 hereof, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 2.01 hereof, that such form or forms have been established
in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.01
hereof, that such terms have been established in conformity with
the provisions of this Indenture; and
(3) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities.
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.01 hereof or
the Company Order and Opinion of Counsel otherwise required pursuant to
such preceding paragraph at the time of issuance of each Security of such
series, but such documents shall be delivered at or prior to the time of
issuance of the first Security of such series.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
<PAGE> 263
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of a
Trust Officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 hereof together with a written
statement (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
<PAGE> 264
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the
Securities of each series including any Global Security (the "Security
Register") in an office or agency of the Company in a Place of Payment (the
"Registrar") where, subject to Section 3.05(c) hereof and such reasonable
regulations as the Company may prescribe, Securities may be presented for
registration of transfer or for exchange. The Company may appoint one or
more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
<PAGE> 265
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to
issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) In case the Company, pursuant to Article 7 hereof,
will be consolidated or merged with or into any other Person or will
convey, transfer or lease substantially all of its properties and assets to
any Person, and the Successor resulting from such consolidation, or
surviving such merger, or into which the Company will have been merged, or
the Person which will have received a conveyance, transfer or lease as
aforesaid, will have executed an indenture supplemental hereto with the
Trustee pursuant to Article 7 hereof, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer or
lease may, from time to time, at the request of the Successor, be exchanged
for other Securities executed in the name of the Successor with such
changes in phraseology and form as may be appropriate, but otherwise in
substance and of like tenor as the Securities surrendered for such exchange
and of like principal amount; and the Trustee, upon receipt of an Officers'
Certificate from the Successor, will authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor, at the option of the Holders but without expense to them, will
provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any
series are to be issued in whole or in part in the form of one or more
Global Securities, authenticate and deliver one or more Global Securities
that will (i) represent and will be denominated in an amount equal to the
aggregate outstanding principal amount of the Securities to be represented
by such Global Security or Securities, (ii) be registered in the name of
the Depository for such Global Security or Securities or the nominee of
such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
<PAGE> 266
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security will be
canceled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
<PAGE> 267
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
<PAGE> 268
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 6.02 hereof.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
defaulted interest and, if applicable, interest on such defaulted interest
(to the extent lawful) at the rate specified in the Securities of such
series (such defaulted interest and, if applicable, interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company, at
its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money (except as otherwise
specified pursuant to Section 3.01 hereof for the Securities of
such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
<PAGE> 269
satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Securities
of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
If notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor have been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of the securities
exchange on which such Securities may be listed, if any, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
The provisions of this Section 3.07 may be
applicable to any series of Securities pursuant to Section 3.01 hereof
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 3.01 hereof).
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
<PAGE> 270
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, registration of
transfer or exchange or for credit against any current or future sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
same are surrendered to the Trustee for cancellation. No Securities shall
be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
ARTICLE 4
REDEMPTION
Section 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 30 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
<PAGE> 271
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding
Securities of a series are to be redeemed, the Trustee will select the
Securities of such series to be redeemed pro rata or by lot or by any other
method the Trustee deems fair and appropriate but only in integral
multiples of $1,000. The particular Securities of a series to be redeemed
will be selected, unless otherwise provided herein, not less than 20 nor
more than 60 days prior to the redemption date by the Trustee from the
Outstanding Securities of such series not previously called for redemption.
(b) The Trustee will promptly notify the Company in
writing of the Securities of such series selected for redemption and, in
the case of any Security of a series selected for partial redemption, the
principal amount thereof to be redeemed but not in integral multiples of
less than $1,000. Provisions of this Indenture that apply to Securities of
a series called for redemption also apply to portions of Securities of a
series called for redemption.
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose
Securities are to be redeemed.
(b) The notice will identify the Securities of the series
to be redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series
is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption
must be surrendered to the Paying Agent at the address specified
in such notice to collect the redemption price;
(vi) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund,
if such is the case; and
(viii) the aggregate principal amount of
Securities that are being redeemed.
(c) At the Company's written request, the Trustee will
give the notice required in this Section 4.04 in the Company's name and at its
expense.
<PAGE> 272
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption
date, the Company will deposit with the Trustee or with the Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.04 hereof) money sufficient to pay the
redemption price of, and accrued and previously unpaid interest on, all
Securities of such series to be redeemed on that date, and the Trustee will
remit the redemption price to Holders entitled thereto. The Trustee or the
Paying Agent will return to the Company any money not required for that
purpose.
(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be
redeemed (whether or not such Securities are presented for payment) will
cease to accrue on the applicable redemption date. If any Security of such
series called for redemption is not so paid upon surrender because of the
failure of the Company to comply with Section 4.06(a) hereof, then interest
will be paid on the unpaid principal from the last Interest Payment Date
until such principal is paid in full at the rate determined pursuant to
Section 3.01 hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
<PAGE> 273
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
Each sinking fund payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities of such series.
Section 5.02 Satisfaction of Sinking Fund Payments with Securities
Subject to Section 5.03 hereof, in lieu of making all or
any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
Section 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
<PAGE> 274
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' Certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date. In the case of the failure of the Company to deliver such Officers'
Certificate, the sinking fund payment due on the next succeeding sinking
fund payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 5.02 hereof and without the right to make
any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 4.03
hereof and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
Prior to any sinking fund payment date, the Company shall
pay to the Trustee or a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
Notwithstanding the foregoing, with respect to a sinking
fund for any series of Securities, if at any time the amount of cash to be
paid into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give the
next succeeding notice of the redemption of Securities of such series
through the operation of the sinking fund. Any such unused balance of
moneys deposited in such sinking fund shall be added to the sinking fund
payment for such series to be made in cash on the next succeeding sinking
fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series,
by public or private purchase as negotiated by the Company, in the open
market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the
principal amount thereof.
<PAGE> 275
ARTICLE 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest
on, the Securities of each series on the dates and in the manner provided
herein and in the Securities. In the event the Company is not the Paying
Agent, principal and interest will be considered paid on the date due if
the Trustee or Paying Agent holds on that date money deposited by the
Company designated for and sufficient to pay all principal and interest
then due. In the event the Company is the Paying Agent, principal and
interest will be considered paid on the date actual payment is mailed to
the Holders entitled to such payments.
(b) The Company will pay interest on overdue principal at
the applicable interest rate on the Securities of each series as determined
in accordance with Section 3.01 hereof.
Section 6.02 Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment
for any series of Securities, in New York, New York, an office or agency
(which may be an office of the Trustee or the Registrar) where Securities
of such series may be presented or surrendered for payment, where
Securities of that series may be presented for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of
the Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company fails to maintain any such required office or agency or fails to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Securities of each series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any
such other office or agency.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in
accordance with this Section 6.02.
<PAGE> 276
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original
principal amount of the Securities of any series is Outstanding, the
Company will (i) remain subject to the requirements of Section 13 or 15(d)
of the Exchange Act whether or not it is required to do so by the
provisions thereof and will file with the SEC all periodic reports as may
be required thereunder and (ii) file with the SEC and the Trustee within 15
days after the Company is required to file the same with the SEC, copies of
the periodic reports which the Company may be required to file with the SEC
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. The Company
will also make such reports available to the Holders, prospective
purchasers of the Securities of any such series, securities analysts and
broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the
original principal amount of the Securities of any series is Outstanding
and (ii) the Company is not required to file with the SEC such reports and
other information referred to in Section 6.03(a) hereof, the Company will
furnish to the Trustee (A) within 120 days after the end of each fiscal
year, annual reports containing the information required to be contained in
Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B)
within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to
be contained in the Quarterly Report on Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form and (C) promptly from the time after the
occurrence of an event which would be required to be reported in the
Current Report on Form 8-K if the Company was required to file such Report,
such other reports containing information required to be contained in the
Current Report on Form 8-K promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other
provisions of TIA Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its
own Paying Agent with respect to any series of Securities, it will, not
less than one Business Day before each due date of the principal of or
interest on any of the Securities of any series, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums will be paid
to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure to so act.
<PAGE> 277
(b) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will, not less
than one Business Day before each due date of the principal of or interest
on, any Securities of any series, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the
payment of the principal of or interest on Securities of such series in
trust for the benefit of the Holders of such series of Securities and the
Trustee entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee notice of any
Default by the Company in the making of any payment of principal or interest;
(iii) at any time during the continuance
of any such Default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent; and
(iv) acknowledge, accept and agree to
comply in all aspects with the provisions of this Indenture relating to the
duties, rights and disabilities of such Paying Agent.
(d) The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which
sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
<PAGE> 278
(e) Except as provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on
any Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do know of a Default
or an Event of Default, the Officers' Certificate will describe the Default
or Event of Default and the action the Company is taking or proposes to
take with respect thereto.
(b) The Company will give prompt written notice to the
Trustee of the occurrence of any Default or Event of Default.
Section 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
<PAGE> 279
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company, in each case except to
the extent the failure to do so would not have, in the judgment of
management, a material adverse effect on the Company and its Subsidiaries
taken as a whole.
Section 6.08 Insurance
The Company will maintain and will cause each of its
Subsidiaries to maintain (either in the name of the Company or in such
Subsidiary's own name) with third party insurance companies or pursuant to
self-insurance, (i) insurance on all their respective properties, (ii)
public liability insurance against claims for personal injury or death as a
result of the use of any products sold by it and (iii) insurance coverage
against other business risks, in each case, in at least such amounts and
against at least such other risks (and with such risk retention) as are
usually and prudently insured against in the same general area by companies
engaged in the same or a similar business.
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse affect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
<PAGE> 280
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially
all of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing, and (iii) the Company will have
delivered to the Trustee prior to the consummation of the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
<PAGE> 281
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events (whatever
the reason for such Event of Default and whether it will be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the failure by the Company to pay
interest on any Security of that series when the same becomes due
and payable and the continuance of any such failure for a period of
30 days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes due
and payable at maturity, upon acceleration or otherwise;
(iii) the failure by the Company to make any
sinking fund payment when the same becomes due and payable by the
terms of a Security of that series and Article 5 hereof;
(iv) the failure by the Company to comply
with any of its agreements or covenants in, or provisions of, the
Security of that series or this Indenture (other than an agreement
or covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series) and such failure
continues for the period and after the notice specified below;
(v) the acceleration of any indebtedness
(other than Non-Recourse Indebtedness) for borrowed money or
guarantees thereof of the Company or any of its Subsidiaries that
has an outstanding principal amount of $5,000,000 or more in the
aggregate; provided that, in the event any such acceleration is
withdrawn or otherwise rescinded within a period of five days
after such acceleration by the holders of such indebtedness, any
Event of Default under this Section 8.01(a)(v) will be deemed to
be cured and any acceleration hereunder will be deemed withdrawn
or rescinded;
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect
of indebtedness (other than Non-Recourse Indebtedness) for
<PAGE> 282
borrowed money or guarantees thereof of the Company or any of its
Subsidiaries with an outstanding aggregate amount of $5,000,000 or
more within five days of such principal or interest payment
becoming due and payable (after giving effect to any applicable
grace period set forth in the documents governing such
indebtedness);
(vii) a final judgment or judgments that
exceed $5,000,000 or more in the aggregate, for the payment of
money, having been entered by a court or courts of competent
jurisdiction against the Company or any of its Subsidiaries and
such judgment or judgments is not satisfied, stayed, annulled or
rescinded within 60 days of being entered;
(viii) the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all
of its property, or
(D) makes a general assignment for
the benefit of its creditors;
(ix) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
or any Material Subsidiary as debtor in an
involuntary case,
(B) appoints a Custodian of the
Company or any Material Subsidiary or a
Custodian for all or substantially all of the
property of the Company or any Material
Subsidiary, or
(C) orders the liquidation of the
Company or any Material Subsidiary,
and the order or decree remains unstayed and in effect for
60 days; or
(x) any other Event of Default provided with
respect to Securities of that series.
<PAGE> 283
(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives
written notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding
Securities of all series affected thereby notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." If such a Default is cured within such time period, it ceases.
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with
respect to the Company specified in clause (viii) or (ix) of Section
8.01(a) hereof) occurs and is continuing, the Trustee (after receiving
indemnities from the Holders to its satisfaction) by notice to the Company,
or the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of such series by notice to the Company and the
Trustee, may declare all Outstanding Securities of such series to be due
and payable immediately. Upon such declaration, the amounts due and payable
on the Securities of such series, as determined in Section 8.02(b) hereof,
will be due and payable immediately. If an Event of Default specified in
clause (viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will
ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee
and the Company may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
or interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent
of the principal amount of the Securities of such series (or in the case of
a default under Section 8.01(a)(ii) or (iv) hereof resulting from a breach
of the covenant set forth in Section 6.16 hereof, 101 percent of the
principal amount of the Securities of such series) will become due and
payable plus accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal or interest on the Securities of any
series or to enforce the performance of any provision of the Securities of
any series or this Indenture.
<PAGE> 284
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
Section 8.05 Control by Majority
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.06 Limitations on Suits
(a) A Holder may pursue a remedy with respect to this
Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee written notice
of a continuing Event of Default with respect to the Securities of
that series;
(ii) the Holder(s) of at least 25 percent in
aggregate principal amount of all of the Outstanding Securities of
that series make a written request to the Trustee to pursue the
remedy;
<PAGE> 285
(iii) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(v) during such 60-day period the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of such series do not give the Trustee a direction
inconsistent with the request.
(b) A Holder of a Security of any series may not use
this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder.
Section 8.08 Collection Suit by Trustee
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company, its creditors or property and will be
entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any Custodian
in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee, and in the event that the Trustee consents to
<PAGE> 286
the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 9.07 hereof. Nothing contained
herein will be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 8.10 Priorities
(a) Subject to Article 16 hereof, in the event the
Trustee collects any money pursuant to this Article 8, it will pay out the
money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07
hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally
entitled thereto.
(b) The Trustee may fix a record date and payment
date for any payment to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
<PAGE> 287
Section 8.12 Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations will be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates
or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof,
the Trustee will examine the certificates and opinions to
determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 9.01(c) does not limit the
effect of Section 9.01(b) hereof;
(ii) the Trustee will not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and
<PAGE> 288
(iii) the Trustee will not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 9.05 hereof or
when exercising any other trust or power conferred upon the
Trustee under this Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. Subject to Section 9.03 hereof, all
money received from the Trustee will, until applied as herein provided, be
held in trust for the payment of principal and interest on the Securities.
(f) The Trustees shall not be required to give any bond
or surety in respect of the exercise of its powers and performance of its
duties hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated
in the document but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee determines to make such further
inquiry or investigation, it will be entitled to examine the
books, records, and premises of the Company, personally or by
agent or attorney;
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate. The Trustee may
consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
<PAGE> 289
(iii) the Trustee may act through agents and will not
be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds deposited
with it or in an account within its dominion and control;
(iv) the Trustee will not be liable for any action
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by
this Indenture; and
(v) unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise
and may refuse to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication.
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of such Holders.
<PAGE> 290
Section 9.06 Reports by Trustee to Holders
(a) Within 60 days after each ______, beginning with
____________, the Trustee will mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a); provided,
however, if no event described in TIA Section 313(a) has occurred within
such calendar year, no report need be transmitted. The Trustee also will
comply with TIA Sections 313(b) and 313(c).
(b) A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on
which the Securities of any series are listed. The Company will notify the
Trustee when the Securities of any series are listed on any stock exchange.
Section 9.07 Compensation and Indemnity
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including, without
limitation, the reasonable compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its
part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
<PAGE> 291
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee with respect
to any series of Securities and appointment of a successor Trustee will
become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 9.08.
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the Outstanding Securities of any series
may remove the Trustee with respect to such series by so notifying the
Trustee and the Company. The Company may remove the Trustee with respect to
any series of Securities if:
(i) the Trustee fails to comply with Section
9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee with respect to any series of Securities
for any reason, the Company will promptly appoint a successor Trustee.
(d) If a successor Trustee with respect to any series of
Securities does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of
at least ten percent in principal amount of the Outstanding Securities of
any series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(e) If the Trustee with respect to any series of
Securities fails to comply with Section 9.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee with
respect to such series.
<PAGE> 292
(f) A successor Trustee with respect to any series of
Securities will deliver a written acceptance of its appointment to the
retiring Trustee with respect to such series and to the Company. Thereupon
the resignation or removal of the retiring Trustee will become effective,
and the successor Trustee will have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee will mail a notice
of its succession to the Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 9.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 9.08, the Company's
obligations under Section 9.07 hereof will continue for the benefit of the
retiring Trustee.
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee with
respect to any series of Securities consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act will
be the successor Trustee; provided that in the case of a transfer of all or
substantially all of its corporate trust business to another corporation,
the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
(b) In case any Securities of any series have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of
the United States, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trustee power, (ii) be
subject to supervision or examination by federal or state (or the District
of Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee is subject to TIA Section 310(b). If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 9.10, it
will resign immediately in the manner and with the effect specified in
Section 9.08 hereof.
<PAGE> 293
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(i) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of such series of Securities as
of the Regular Record Date of such Interest Payment Date;
and
(ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.02 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
<PAGE> 294
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.10, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.10 inclusive, and any other
<PAGE> 295
covenants specified in or pursuant to this Indenture) and 8.01(a)(ix) shall
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(ix), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
Section 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, (1) the principal
of and interest on the Securities of such series on the respective
Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable
in accordance with the terms of this Indenture and such
<PAGE> 296
Securities; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to said payments with respect to such
Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 4.02 hereof, a notice of its
election to redeem all or any portion of such Outstanding
Securities at a future date in accordance with the terms of the
Securities of such series and Article 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date first set forth hereinabove, there has been
a change in the applicable Federal income tax law, in either case,
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes as
a result of such Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge
were not to occur.
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as result of such Covenant
Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred
and be continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default within
the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
<PAGE> 297
(viii) Notwithstanding any other provisions of this
Section, such Defeasance or Covenant Defeasance shall be effected
in compliance with any additional or substitute terms, conditions
or limitations in connection therewith pursuant to Section 3.01
hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been
complied with.
(x) No event or condition shall exist that, pursuant to
the provisions of Article 16 hereof, would prevent the Company
from making payments of the principal of or interest on the
Securities of such series on the date of such deposit or at any
time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
<PAGE> 298
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time
to time upon Company Request any money or U.S. Government Obligations (or
other property and any proceeds therefrom) held by it as provided in
Section 11.04 hereof with respect to Outstanding Securities of any
Defeasible Series that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance with respect to the Securities of such series.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 11 with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 11.05 hereof with respect to
Securities of such series in accordance with this Article 11; provided,
however, that if the Company makes any payment of principal of or interest
on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series when
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 hereof, and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust
<PAGE> 299
with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the
Company, as provided in Section 6.04 hereof) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
<PAGE> 300
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
ARTICLE 13
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities in
addition to certificated Securities;
(iv) to make any change that does not adversely
affect the legal rights hereunder of any Holder of a
Security of any series;
(v) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(vi) to add any additional Events of Default
for the benefit of the Holders of all or any series of
Securities (and if such Events of Default are to be for
the benefit of less then all series of Securities,
stating that such Events of Default are being included
solely for the benefit of such series);
(vii) to change or eliminate any of the
provisions of this Indenture in respect of one or more
series of Securities; provided that any such addition,
change or elimination shall become effective only when
there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
<PAGE> 301
(viii) to establish the form or terms of Securities
of any series as permitted by Sections 2.01 and 3.01 hereof;
(ix) to secure the Securities pursuant to the
requirements of Section 6.18 hereof;
(x) to evidence and provide for the
acceptance of appointment hereunder of a successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of
Section 9.08 hereof;
(xi) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to
implement the provisions of Article 11 hereof or
discharge of any series of Securities pursuant to
Sections 12.01, 12.02 and 12.03 hereof; provided that any
such action shall not adversely affect the interests of
the Holders of Securities of such series or any other
series in any material respect; or
(xii) to comply with the qualification of this
Indenture under the TIA.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be contained therein. After an amendment or waiver
under this Section 13.01 becomes effective, the Company will mail to the
Holders of each Security affected thereby a notice describing the amendment
or waiver. Any failure of the Company to mail such notice, will not,
however, affect the validity of any such supplemental indenture.
Section 13.02 Supplemental Indentures With Consent of Holders
(a) Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each series
affected by such amendment.
<PAGE> 302
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.06 hereof, the Trustee will join with the
Company in the execution of such supplemental indenture.
(c) It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any
proposed amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange
offer for Securities). However, without the consent of each Holder of an
Outstanding Security affected thereby, an amendment or waiver under this
Section 13.02 may not:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security or
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on
or after the redemption date or repayment date), or
(ii) reduce the percentage in principal amount
of the Outstanding Securities of any series, the consent
of whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify any of the provisions of this
Section or Section 8.07, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify any of the provisions of this
Indenture relating to the subordination of the Securities
in a manner adverse to the Holders.
<PAGE> 303
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required
from such Holder) may be subject to the requirement that such Holder has
been the Holder of record of any Securities of any series with respect to
which such consent is required or sought as of a date identified by the
Trustee in a notice furnished to Holders in accordance with the terms of
this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to such Holder's Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective. An amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any amendment or waiver. If the Company elects to fix a record date for
such purpose, the record date will be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 10.02 hereof or (ii) such other date as the Company
will designate. If a record date is fixed, then notwithstanding the
provisions of Section 13.04(a) hereof, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, will be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent will be valid or effective
for more than 90 days unless consents from Holders of the principal amount
of Securities required hereunder for such amendment or waiver to be
effective has also been given and not revoked within such 90-day period.
<PAGE> 304
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless
it is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
Section 13.07 Subordination Unimpaired
This Indenture may not be amended to alter the
subordination of any Outstanding Securities without the written consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
<PAGE> 305
Section 14.02 Notices
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
If to the Company:
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2000
Attention: Corporate Trust Administration
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder will be
mailed by first-class, postage-prepaid mail, return receipt requested, to
the Holder's address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee and each Agent at the same
time.
<PAGE> 306
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
The Trustee will fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any
Global Security held by a Depository entitled under the procedures of such
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Persons who are such
beneficial owners at the close of business on such record date or their
duly appointed proxy or proxies will be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
actions, whether or not such Persons remain such beneficial owners after
such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other action will be valid or effective if made,
given or taken more than six months after such record date.
<PAGE> 307
Section 14.05 Proof of Execution of Instruments and Holding of Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds
to be recorded in such jurisdiction that the Person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other
officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where Securities
are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
(3) The ownership of Securities shall be proved
by the Securities Register for such Security or by a
certificate of the Registrar.
(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
<PAGE> 308
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) will
include:
(i) a statement that the Person making such
certificate or opinion has read such condition or covenant;
(ii) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(iii) a statement that, in the opinion of such
Person, such Person has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has
been complied with.
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon the
<PAGE> 309
certificate, statement or opinion of or representations by an officer or
officers of the Company, or other Persons or firms deemed appropriate by
such counsel, unless such counsel has actual knowledge that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may be an
employee of the Company), or firm of accountants, unless such Officer or
counsel, as the case may be, has actual knowledge that the certificate or
opinion or representation with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are
erroneous.
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
<PAGE> 310
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent
and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 14.19 Acceptance of Trust
IBJ Schroder Bank & Trust Company, the Trustee named
herein, hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
<PAGE> 311
(a) to give any notice to the Company or to the
Trustee, or to give any direction to the Trustee, or to waive any
non-performance hereunder, and its consequences, or to take any
other action authorized to be taken by Holders pursuant to any of
the provisions of this Indenture;
(b) to remove the Trustee and appoint a successor
Trustee pursuant to the provisions of Section 9.08 hereof;
(c) to consent to the amendment of the provisions
contained herein and the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article 13
hereof; or
(d) to take any other action authorized to be taken
by or on behalf of the Holders of any specified aggregate principal
amount of the Outstanding Securities under any other provision of
this Indenture or under applicable law.
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, setting forth the time and
the place of such meeting and, in general terms, the action proposed to be
taken at such meeting, shall be mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
<PAGE> 312
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
ARTICLE 16
SUBORDINATION; SENIORITY
Section 16.01 Securities Subordinated to Senior Indebtedness
(a) The Company agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise agrees, that the
payment of the principal of, and interest on (including, without
limitation, interest accruing subsequent to the filing of a petition under
applicable Bankruptcy Law or the appointment of a Custodian), the
Securities of each series hereunder is subordinated and junior in right of
payment, to the extent and in the manner provided in this Article 16,
except as provided in Section 9.07, to the prior payment in full in cash or
Cash Equivalents or all Senior Indebtedness whether outstanding on the
Issue Date of the Securities of any series or created, incurred, assumed or
guaranteed thereafter. The Securities of any series shall rank pari passu
with the Company's 4 7/8% Convertible Subordinated Debentures due 2005.
<PAGE> 313
(b) All the provisions of this Indenture and the
Securities of any series will be subject to the provisions of this Article
16 so far as they may be applicable thereto, except that nothing in this
Article 16 will apply to claims for, or payments to, the Trustee under or
pursuant to Section 9.07 hereof.
Section 16.02 Company Not To Make Payments with Respect to Securities in
Certain Circumstances
(a) No payment will be made by the Company on account of
principal of or interest on the Securities of any series or on account of
the purchase, redemption or other acquisition of such Securities, if at the
time of such payment or immediately after giving effect thereto there will
have occurred and be continuing (i) a default in the payment of principal
of (or premium, if any, on) or interest on any Senior Indebtedness
continuing beyond the applicable period of grace, if any, specified in the
applicable instrument, lease, contract, agreement or other document
evidencing such Senior Indebtedness with respect to Senior Indebtedness in
an aggregate principal amount of not less than $5,000,000, or (ii) any
event of default with respect to Senior Indebtedness permitting the
acceleration thereof and such event of default is the subject of a judicial
proceeding or the Company receives written notice of such event of default
from the holders of an aggregate principal amount of not less than
$5,000,000 of such Senior Indebtedness (provided, however, that in the case
of Senior Indebtedness issued pursuant to an indenture, such notice may be
validly given only by the trustee under such indenture), unless and until
such default or event of default has been cured or waived or ceases to
exist; provided, further, that the foregoing will not prohibit payments
made pursuant to Articles 11 or 12 hereof from monies deposited with the
Trustee pursuant thereto prior to any such default, judicial proceeding or
notice.
(b) Upon any acceleration of the principal of the
Securities of any series or any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution or winding up or
liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior Indebtedness
(including, without limitation, interest accruing subsequent to the filing
of a petition under applicable Bankruptcy Law or the appointment of a
Custodian) will first be paid in full in cash or Cash Equivalents, or
payment thereof provided for, before any payment is made on account of the
principal of or interest on the Securities (except payments made pursuant
to Articles 11 or 12 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such dissolution, winding up, liquidation
or reorganization); and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash,
<PAGE> 314
property or securities, to which the Holders or the Trustee would be
entitled except for the provisions of this Article 16, will (except as
aforesaid) be paid by the Company or by any Custodian or other Person, or
by the Holders or the Trustee, making such payment or distribution directly
to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary
so that the holders of all Senior Indebtedness have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Trustee.
(c) If the Trustee or any Holder does not file a proper
claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for
or on behalf of the Trustee or such Holder.
(d) In the event that, notwithstanding the foregoing, any
payment by or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, is received by the Trustee or the Holders before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, or provision is
made for such payment in cash or Cash Equivalents, such payment or
distribution will be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay the
holders of all Senior Indebtedness in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, and, until so delivered, the same will
be held in trust by the Trustee or any Holder as the property of the
holders of Senior Indebtedness (but subject to the power of a court of
competent jurisdiction to make other equitable provision, which will have
been determined by such court to give effect to the rights conferred in
this Article 16 upon the Senior Indebtedness and the holders thereof with
respect to the Securities or the Holders or the Trustee, by a lawful plan
of reorganization or readjustment under applicable Bankruptcy Laws). The
Trustee will not have any obligation or duty to recover any such amounts so
distributed.
<PAGE> 315
(e) The consolidation of the Company with, or the merger
of the Company into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 7 hereof will not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of
this Section 16.02 if such other corporation will, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 7 hereof. Nothing in this Section 16.02 will apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.07
hereof.
(f) The holders of Senior Indebtedness may, at any time
and from time to time, without the consent of, or notice to, the Holders or
the Trustee, without incurring responsibility to the Holders or the Trustee
and without impairing or releasing the rights of any holder of Senior
Indebtedness or in any way altering or affecting any of the provisions of
this Article 16: (i) change the amount, manner, place or terms of payment
or change or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding, (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness, (iii) release any Person liable in any manner for the
collection of Senior Indebtedness, and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 16.03 Subrogation of Securities
(a) Subject to the payment in full of all Senior
Indebtedness at the time outstanding, the Holders will be subrogated
(without any duty on the part of the holders of Senior Indebtedness to
warrant, create, effectuate, preserve or protect each subrogation) to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness until the principal of and interest on the
Securities of each series will be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders or
the Trustee on their behalf would be entitled except for the provisions of
this Article 16, and no payments over pursuant to the provisions of this
Article 16, to the holders of Senior Indebtedness by Holders or the Trustee
on their behalf will, as between the Company, its creditors (other than
holders of Senior Indebtedness), and the Holders, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article 16 are and are intended
solely for the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of Senior Indebtedness, on the other.
(b) Nothing contained in this Article 16 or elsewhere in
this Indenture or in the Securities of any series is intended to or will
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company, which
<PAGE> 316
is absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities of each series as and when the same will become
due and payable in accordance with their terms, or is intended to or will
affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor will anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 16 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the
Company referred to in this Article 16, the Trustee and the Holders will be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or certificate of the Custodian or
other Person making such payment or distribution, delivered to the Trustee
or to the Holders, for the purpose of ascertaining the holders of Senior
Indebtedness and other Indebtedness of the Company and the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 16.
Section 16.04 Authorization by Holders
Each Holder by such Holder's acceptance of a Security of
any series authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the
Holder and the holders of Senior Indebtedness, the subordination provided
in this Article 16 and appoints the Trustee such Holder's attorney-in-fact
for any and all such purposes.
Section 16.05 Notices to Trustee
(a) The Company will give prompt written notice in the
form of an Officers' Certificate to the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16. Notwithstanding the provisions of this
Article 16 or any other provision of this Indenture, the Trustee will not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this
Article 16, unless and until the Trustee will have received at its
Corporate Trust Office written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from a representative or trustee
therefor; provided, that in the case of Senior Indebtedness issued pursuant
to an indenture, such notice may be validly given only by the trustee under
such indenture; and before the receipt of any such written notice, the
Trustee will be entitled in all respects to assume that no such facts
exist; provided further that if the Trustee will not have received, at
least three Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security of
<PAGE> 317
any series), with respect to such monies, the notice provided for in this
Section 16.05, then, anything herein contained to the contrary
notwithstanding, the Trustee will have the full power and authority to
receive such monies and to apply the same to the purpose for which they
were received and will not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
(b) The Trustee will be entitled to rely on the delivery
to it of a written notice by a Person representing himself or herself to be
a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or a representative on behalf of any such holder.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant
to this Article 16, the Trustee may request such Person to provide evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 16, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
such payment.
(c) Notwithstanding anything to the contrary hereinbefore
set forth, nothing will prevent any payment by the (i) Company or the
Trustee to the Holders of monies in connection with a redemption of
Securities of any series if (A) notice of such redemption had been given
pursuant to Article 4 hereof prior to the receipt by the Company or the
Trustee, as applicable, of written notice as aforesaid, and (B) such notice
of redemption is given not earlier than sixty days before the redemption
date, or (ii) Trustee to the Holders of amounts deposited with it pursuant
to Articles 11 or 12 hereof.
(d) The Company agrees that if any default occurs with
respect to any Senior Indebtedness, which default permits the holders of
such Senior Indebtedness to accelerate the maturity thereof, the Company
will give prompt notice in writing of such happening to all known holders
of Senior Indebtedness and will certify to each such holder the name of the
Trustee and current notice address.
Section 16.06 Trustee's Relation to Senior Indebtedness
(a) The Trustee in its individual capacity will be
entitled to all the rights set forth in this Article 16 in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 9.03 or elsewhere in
this Indenture will deprive the Trustee of any of its rights as such
holder.
<PAGE> 318
(b) With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 16, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness will be read into this Indenture against the Trustee. The
Trustee will not owe any fiduciary duty to the holders of Senior
Indebtedness but will have only such obligations to such holders as are
expressly set forth in this Article 16.
Section 16.07 No Impairment of Subordination
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided will at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by an act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 16.08 Article 16 Not to Prevent Events of Default
No provision of this Article 16 will prevent the
occurrence of an Event of Default hereunder.
Section 16.09 Paying Agents Other Than the Trustee
In any case at any time any Paying Agent other than the
Trustee has been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 16 will in such case (unless the
context will otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such place of the Trustee; provided, however, that Sections 16.05 and
16.06 hereof will not apply to the Company or any Subsidiary if it acts as
Paying Agent.
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
---------------------------
Thomas A. Napoli
Vice President - Finance and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title:
<PAGE> 319
EXHIBIT 5.1
January 31, 1996
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027-3212
Ladies and Gentlemen:
We have acted as counsel to U.S. Home Corporation, a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), on the date hereof. The Registration
Statement relates to the registration under the Act of $100,000,000
aggregate principal amount of debt securities, which may be issued as senior,
senior subordinated or subordinated debt (the "Debt Securities") of the
Company. The Debt Securities are to be issued pursuant to one or more
indentures (the "Indentures"), each to be entered into between the Company
and IBJ Schroder Bank & Trust Company, as trustee (the "Trustee"). The
Debt Securities are being registered for offer and sale from time to time
pursuant to Rule 415 under the Act.
In connection herewith, we have examined the Registration
Statement, the proposed forms of Indentures to be filed as exhibits to the
Registration Statement, together with such corporate records, certificates and
other documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that when (i)
the Registration Statement becomes effective under the Act, (ii) the Board of
Directors of the Company, or a duly authorized committee thereof, has taken
all necessary action to fix and approve the rank and terms of the Debt
Securities, including the form or forms of note to evidence the Debt
Securities, in a manner that does not violate any applicable law, governmental
or court-imposed order or restriction or agreement or instrument then binding
on the Company, or otherwise impair the legal and binding nature of the
obligations represented by the Debt Securities, (iii) the proposed Indentures
pursuant to which the Debt Securities are to be issued shall have been
qualified under the Trust Indenture Act of 1939, as amended, and duly
executed and delivered by duly authorized officers of the Company and the
Trustee in the forms filed as exhibits to the Registration Statement, with
items shown in such exhibits as subject to completion completed in a manner
satisfactory to us, and (iv) the Debt Securities are executed and
authenticated in accordance with the terms of the Indenture and delivered to
the purchasers thereof upon payment of the consideration therefor fixed by the
Board of Directors of the Company, or a duly authorized committee thereof,
the Debt Securities will be legally issued and binding obligations of
the Company, subject to applicable bankruptcy, insolvency, reorganization
and similar laws affecting creditors' rights generally and general principles
of equity (regardless whether such principles are considered in a
proceeding in equity or an action at law).
<PAGE> 320
The foregoing opinion is limited to the laws of the State of
New York and the General Corporation Law of the State of Delaware. The Debt
Securities may be issued from time to time on a delayed or continuous basis
and the foregoing opinion is limited to the laws, including the Rules and
Regulations of the Commission, as in effect on the date hereof.
We consent to the filing of this opinion with the Commission
as an Exhibit to the Registration Statement and to the use of our name under
the caption "Legal Matters" in the Prospectus included therein. Our
opinion is rendered solely for your information in connection with the
foregoing, and may not be relied upon by any other person or for any other
purpose without our prior written consent. In giving this opinion, we do
not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the
Commission.
Very truly yours,
/s/ Kaye, Scholer, Fierman,
Hays and Handler, LLP
-----------------------------
Kaye, Scholer, Fierman, Hays
and Handler, LLP
<PAGE> 321
EXHIBIT 12
<TABLE>
<CAPTION>
U.S. HOME CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE FIVE YEARS ENDED DECEMBER 31, 1994
AND NINE MONTHS ENDED SEPTEMBER 30, 1994 and 1995
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, September 30,
------------------------------------------------------- --------------------
1990 1991 1992 1993 1994 1994 1995
--------- --------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
COMPUTATION OF HISTORICAL RATIOS:
EARNINGS -
Net Income (Loss) From Continuing
Operations $(87,870) $ (4,832) $ 29,349 $ 78,606 $ 32,829 $ 37,540 $ 41,270
Add:
Provision (Benefit) For Income
Taxes of U.S. Home Corporation - - - (33,966) 19,697 14,077 15,477
Fixed charges of U.S. Home
Corporation:
Interest expense, net 24,008 8,811 2,483 1,453 537 428 449
Previously capitalized interest
charged to cost of sales 51,500 24,734 23,338 22,342 28,871 21,635 20,335
Portion of rent expense
representative of the
interest factor 1,686 1,371 1,381 1,562 1,820 1,397 1,382
Fixed-charges of joint ventures
(principally interest) 1,754 473 355 97 183 165 132
-------- -------- -------- -------- -------- -------- --------
EARNINGS AS ADJUSTED $ (8,922) $ 30,557 $ 56,906 $ 70,094 $ 83,937 $ 75,242 $ 79,045
======== ======== ======== ======== ======== ======== ========
FIXED CHARGES, AS ADJUSTED, OF
U.S. HOME CORPORATION:
Total Interest Paid Or Accrued $ 64,906 $ 30,548 $ 15,693 $ 23,373 $ 31,357 $ 23,335 $ 24,621
Portion Of Rent Expense As Above 1,686 1,371 1,381 1,562 1,820 1,397 1,382
Fixed-Charges Of Joint Ventures 4,432 588 376 239 227 170 204
-------- -------- -------- -------- -------- -------- --------
$ 71,024 $ 32,507 $ 17,450 $ 25,174 $ 33,404 $ 24,904 $ 26,207
======== ======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES (0.13) (0.94) 3.26 2.78 2.51 3.02 3.02
</TABLE>
<PAGE> 322
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 8,
1995 included in U.S. Home Corporation's Form 10-K for the year ended
December 31, 1994 and to all references to our Firm included in this
Registration Statement.
We are aware that U.S. Home Corporation has incorporated by reference in
this Registration Statement its Form 10-Q for the quarters ended March 31,
1995, June 30, 1995 and September 30, 1995, which include our reports dated
April 24, 1995, July 21, 1995 and October 19, 1995, respectively, covering
the unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933, those reports are not
considered a part of the registration statement prepared or certified by
our firm or a report prepared or certified by our firm within the meaning
of Sections 7 and 11 of the Act.
/s/ Arthur Andersen LLP
-------------------------
ARTHUR ANDERSEN LLP
Houston, Texas
January 30, 1996
<PAGE> 323
EXHIBIT 25.1
Registration No 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305 (b) (2)
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-5375195
(State of Incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
Max Volmar, Vice President
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
(212) 858-2000
(Name, Address and Telephone Number of Agent for Service)
U.S. HOME CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 21-0718930
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 West Loop South
Houston, Texas 77027
(Address of principal executive office) (Zip code)
All Senior Debt Securities
to be registered under U. S. Home Corporation's
Form S-3 under the Securities Act of 1933
to be offered on a delayed or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended
(Title of Indenture Securities)
-----------------------------
<PAGE> 324
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York Second District
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of
voting securities of the trustee:
As of January 26, 1996
Col. A Col. B
Title of class Amount Outstanding
Not Applicable
<PAGE> 325
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such
other indenture:
9 3/4% Senior Notes Due 2003
(b) A brief statement of the facts relied upon as
a basis for the claim that no conflicting interest
within the meaning of Section 310 (b) (1) of the Act
arises as a result of the trusteeship under any such
other indenture, including a statement as to how the
indenture securities will rank as compared with
the securities issued under such other indenture.
Not Applicable
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer, partner,
employee, appointee, or representative of the obligor or of any
underwriter for the obligor, identify each such person having any
such connection and state the nature of each such connection.
Not Applicable
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities of
the trustee owned beneficially by the obligor and each
director, partner, and executive officer of the obligor:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned beneficially Percent of voting
securities
represented by
amount given in
Col. C
- ------------ --------------- ------------------------- ----------------
Not Applicable
<PAGE> 326
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by each
underwriter for the obligor and each director, partner
and executive officer of each such underwriter:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially securities
represented by
amount given in
Col. C
- --------------- --------------- -------------- -----------------
Not Applicable
Item 8. Securities of the obligor owned or held by the trustee
Furnish the following information as to securities
of the obligor owned beneficially or held as
collateral security for obligations in default by
the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned
beneficially or Percent of voting
held as securities
collateral security represented by
for obligations in amount given in
default Col. C
- -------------- -------------- ------------------- ------------------
Not Applicable
<PAGE> 327
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of an underwriter for the obligor,
furnish the following information as to each
class of securities of such underwriter any of
which are so owned or held by the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security amount given in
for obligations Col. C
in default
- --------------- --------------- ------------------ ------------------
Not Applicable
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or securityholders of the obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default
voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent
or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary,
of the obligor, furnish the following information
as to the voting securities of such person:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security for amount given in
obligations Col C.
in default
- ------------- -------------- ------------------ -------------------
Not Applicable
<PAGE> 328
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of a person who, to the knowledge
of the trustee, owns 50 percent or more of the
voting securities of the obligor, furnish the
following information as to each class of securities
of such any of which are so owned or held by
the trustee:
As of January 26, 1996
Col. A Col. B Col. C
Nature of Indebtedness Amount Outstanding Date Due
- ---------------------- ------------------ --------
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security for amount given in
obligations Col. C
in default
- ------------- -------------- ------------------ -------------------
Not Applicable
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the
nature of any such default.
Not Applicable
<PAGE> 329
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates
of interest or participation in any other securities,
of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the
indenture, state whether there has been a default under
any such indenture or series, identify the indenture
or series affected, and explain the nature of any such
default.
Not Applicable
Item 14. Affiliations with the Underwriters
If any underwriter is an affiliate of the trustee,
describe each such affiliation.
Not Applicable
Item 15. Foreign Trustees.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not Applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement
of eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust
Company as amended to date. (See Exhibit 1A to Form
T-1, Securities and Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the Trustee to
Commence Business (Included in Exhibit I above).
*3. A copy of the Authorization of the Trustee, as
amended to date (See Exhibit 4 to Form T-1, Securities
and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the Trustee,
as amended to date (See Exhibit 4 to Form T-1, Securities
and Exchange Commission File No. 22-19146).
<PAGE> 330
5. A copy of each Indenture referred to in Item 4, if the
Obligor is in default. Not Applicable.
6. The consent of the United States institutional trustee
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of
its supervising or examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
NOTE
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor and its
directors or officers, the trustee has relied upon information furnished to
it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the trustee
of all facts on which to base responsive answers to Item 2, the answers to
said Item are based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the trustee
as indicated in Item 13, the obligor is not in default under any indenture
under which the applicant is trustee.
<PAGE> 331
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, IBJ Schroder Bank & Trust Company, a corporation organized
and existing under the laws of the State of New York, has duly caused this
statement of eligibility & qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York,
and State of New York, on the 26th day of January, 1996.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
---------------------------------
Max Volmar
Vice President
<PAGE> 332
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issue of U.S. Home
Corporation, we hereby consent that reports of examinations by
Federal, State, Territorial, or District authorities may be furnished by
such authorities to the Securities and Exchange Commission upon request
therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
-----------------------------------
Max Volmar
Vice President
<PAGE> 333
Dated: January 26, 1996
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of September 30, 1995
Dollar Amounts
in Thousands
---------------
ASSETS
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ....$ 27,302
Interest-bearing balances..............................$ 274,438
Securities: Held to Maturity............................$ 169,283
Available-for-sale..........................$ 30,605
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries and
in IBFs:
Federal Funds sold.....................................$ 49,732
Securities purchased under agreements to resell........$ -0-
Loans and lease financing receivables:
Loans and leases, net of unearned income...$ 1,837,874
LESS: Allowance for loan and lease losses..$ 52,477
LESS: Allocated transfer risk reserve......$ -0-
Loans and leases, net of unearned income, allowance,
and reserve............................................$ 1,785,397
Assets held in trading accounts............................$ 114
Premises and fixed assets..................................$ 7,958
Other real estate owned....................................$ 397
Investments in unconsolidated subsidiaries and
associated companies.......................................$ -0-
Customers' liability to this bank on acceptances
outstanding................................................$ 938
Intangible assets..........................................$ -0-
Other assets...............................................$ 68,195
TOTAL ASSETS...............................................$ 2,414,359
<PAGE> 334
LIABILITIES
Deposits:
In domestic offices....................................$ 474,693
Noninterest-bearing .................$ 143,148
Interest-bearing ....................$ 331,545
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.................................$ 853,713
Noninterest-bearing .................$ 10,321
Interest-bearing ................... $ 843,392
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal Funds purchased................................$ 75,000
Securities sold under agreements to repurchase.........$ -0-
Demand notes issued to the U.S. Treasury...................$ 50,000
Trading Liabilities........................................$ 101
Other borrowed money:
a) With original maturity of one year or less..........$ 668,892
b) With original maturity of more than one year........$ 5,000
Mortgage indebtedness and obligations under
capitalized leases.........................................$ -0-
Bank's liability on acceptances executed and
outstanding................................................$ 938
Subordinated notes and debentures..........................$ -0-
Other liabilities..........................................$ 83,666
TOTAL LIABILITIES..........................................$ 2,212,003
Limited life preferred stock and related surplus...........$ -0-
<PAGE>335
EQUITY CAPITAL
Perpetual preferred stock..................................$ -0-
Common Stock...............................................$ 29,650
Surplus....................................................$ 216,935
Undivided profits and capital reserves.....................$ (44,320)
Plus: Net unrealized gains (losses) on marketable
equity securities.................................$ (91)
Cumulative foreign currency translation adjustments........$ -0-
TOTAL EQUITY CAPITAL.......................................$ 202,356
TOTAL LIABILITIES AND EQUITY CAPITAL.......................$ 2,414,359
<PAGE> 336
EXHIBIT 25.2
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305 (b) (2)
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-5375195
(State of Incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
Max Volmar, Vice President
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
(212) 858-2000
(Name, Address and Telephone Number of Agent for Service)
U.S. HOME CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 21-0718930
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 West Loop South
Houston, Texas 77027
(Address of principal executive office) (Zip code)
All Senior Subordinated Debt Securities
to be registered under U. S. Home Corporation's
Form S-3 under the Securities Act of 1933
to be offered on a delayed or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended
(Title of Indenture Securities)
-----------------------------
<PAGE> 337
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York Second District
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of
voting securities of the trustee:
As of January 26, 1996
Col. A Col. B
Title of class Amount Outstanding
Not Applicable
<PAGE> 338
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such
other indenture:
9 3/4% Senior Notes Due 2003
(b) A brief statement of the facts relied upon as a basis
for the claim that no conflicting interest within
the meaning of Section 310 (b) (1) of the Act arises
as a result of the trusteeship under any such other
indenture, including a statement as to how the
indenture securities will rank as compared with
the securities issued under such other indenture.
Not Applicable
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer, partner,
employee, appointee, or representative of the obligor or
of any underwriter for the obligor, identify each such
person having any such connection and state the nature of
each such connection.
Not Applicable
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the
obligor and each director, partner, and executive officer
of the obligor:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned beneficially Percent of voting
securities
represented by
amount given in
Col. C
- ------------- -------------- ------------------------- -----------------
Not Applicable
<PAGE> 339
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by each
underwriter for the obligor and each director,
partner and executive officer of each such underwriter:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially securities
represented by
amount given in
Col. C
- ------------- -------------- ------------ -----------------
Not Applicable
Item 8. Securities of the obligor owned or held by the trustee
Furnish the following information as to securities
of the obligor owned beneficially or held as
collateral security for obligations in default
by the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as represented by
collateral security amount given in
for obligations Col. C
in default
Not Applicable
<PAGE> 340
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of an underwriter for the obligor,
furnish the following information as to each class
of securities of such underwriter any of which are
so owned or held by the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
collateral security represented by
for obligations amount given in
in default Col. C
- ------------- -------------- ------------------- -----------------
Not Applicable
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or securityholders of the obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities of a
person who, to the knowledge of the trustee (1) owns
10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the
obligor, furnish the following information as to the voting
securities of such person:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security amount given in
for obligations Col. C
in default
- ------------- -------------- ------------------ -----------------
Not Applicable
<PAGE> 341
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of
a person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the
obligor, furnish the following information as to each
class of securities of such any of which are so owned
or held by the trustee:
As of January 26, 1996
Col. A Col. B Col. C
Nature of Indebtedness Amount Outstanding Date Due
- ---------------------- ------------------ --------
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as represented by
collateral security amount given in
for obligations Col. C
in default
- ------------- -------------- ------------------- -----------------
Not Applicable
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect
to the securities under this indenture. Explain the
nature of any such default.
Not Applicable
<PAGE> 342
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates
of interest or participation in any other securities,
of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the
indenture, state whether there has been a default under
any such indenture or series, identify the indenture
or series affected, and explain the nature of any such
default.
Not Applicable
Item 14. Affiliations with the Underwriters
If any underwriter is an affiliate of the trustee,
describe each such affiliation.
Not Applicable
Item 15. Foreign Trustees.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not Applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement
of eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust
Company as amended to date. (See Exhibit 1A to Form
T-1, Securities and Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the Trustee
to Commence Business (Included in Exhibit I above).
*3. A copy of the Authorization of the Trustee, as amended
to date (See Exhibit 4 to Form T-1, Securities
and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the Trustee, as amended
to date (See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
<PAGE> 343
5. A copy of each Indenture referred to in Item 4, if the
Obligor is in default. Not Applicable.
6. The consent of the United States institutional trustee
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of
its supervising or examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
NOTE
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its directors
or officers, the trustee has relied upon information furnished to it by
the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answers to said Item are based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the trustee
as indicated in Item 13, the obligor is not in default under any indenture
under which the applicant is trustee.
<PAGE> 344
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, IBJ Schroder Bank & Trust Company, a
corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility & qualification to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York, and State of New York, on the 26th day of January, 1996.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
----------------------------------
Max Volmar
Vice President
<PAGE> 345
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, as amended, in connection with the proposed
issue of U.S. Home Corporation, we hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
---------------------------------
Max Volmar
Vice President
<PAGE> 346
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of September 30, 1995
Dollar Amounts
in Thousands
---------------
ASSETS
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin.....$ 27,302
Interest-bearing balances..............................$ 274,438
Securities: Held to Maturity............................$ 169,283
Available-for-sale..........................$ 30,605
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries and
in IBFs:
Federal Funds sold.....................................$ 49,732
Securities purchased under agreements to resell........$ -0-
Loans and lease financing receivables:
Loans and leases, net of unearned income....$ 1,837,874
LESS: Allowance for loan and lease losses...$ 52,477
LESS: Allocated transfer risk reserve.......$ -0-
Loans and leases, net of unearned income,
allowance, and reserve.................................$ 1,785,397
Assets held in trading accounts............................$ 114
Premises and fixed assets..................................$ 7,958
Other real estate owned....................................$ 397
Investments in unconsolidated subsidiaries and
associated companies.......................................$ -0-
Customers' liability to this bank on acceptances
outstanding................................................$ 938
Intangible assets..........................................$ -0-
Other assets...............................................$ 68,195
TOTAL ASSETS...............................................$ 2,414,359
<PAGE> 347
LIABILITIES
Deposits:
In domestic offices....................................$ 474,693
Noninterest-bearing .................$ 143,148
Interest-bearing ....................$ 331,545
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.................................$ 853,713
Noninterest-bearing..................$ 10,321
Interest-bearing ....................$ 843,392
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal Funds purchased................................$ 75,000
Securities sold under agreements to repurchase.........$ -0-
Demand notes issued to the U.S. Treasury...................$ 50,000
Trading Liabilities........................................$ 101
Other borrowed money:
a) With original maturity of one year or less..........$ 668,892
b) With original maturity of more than one year........$ 5,000
Mortgage indebtedness and obligations under
capitalized leases.........................................$ -0-
Bank's liability on acceptances executed and
outstanding................................................$ 938
Subordinated notes and debentures..........................$ -0-
Other liabilities..........................................$ 83,666
TOTAL LIABILITIES..........................................$ 2,212,003
Limited life preferred stock and related surplus...........$ -0-
<PAGE> 348
EQUITY CAPITAL
Perpetual preferred stock..................................$ -0-
Common Stock...............................................$ 29,650
Surplus....................................................$ 216,935
Undivided profits and capital reserves.....................$ (44,320)
Plus: Net unrealized gains (losses) on marketable
equity securities.................................$ (91)
Cumulative foreign currency translation adjustments........$ -0-
TOTAL EQUITY CAPITAL.......................................$ 202,356
TOTAL LIABILITIES AND EQUITY CAPITAL.......................$ 2,414,359
<PAGE> 349
EXHIBIT 25.3
Registration No. 33__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305 (b) (2)
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-5375195
(State of Incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
Max Volmar, Vice President
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
(212) 858-2000
(Name, Address and Telephone Number of Agent for Service)
U.S. HOME CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 21-0718930
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1800 West Loop South
Houston, Texas 77027
(Address of principal executive office) (Zip code)
All Subordinated Debt Securities
to be registered under U. S. Home Corporation's
Form S-3 under the Securities Act of 1933
to be offered on a delayed or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended.
(Title of Indenture Securities)
-----------------------------
<PAGE> 350
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York Second District
33 Liberty Street
New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of
voting securities of the trustee:
As of January 26, 1996
Col. A Col. B
Title of class Amount Outstanding
Not Applicable
<PAGE> 351
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such
other indenture:
9 3/4% Senior Notes Due 2003
(b) A brief statement of the facts relied upon as a basis
for the claim that no conflicting interest within the
meaning of Section 310 (b) (1) of the Act arises as a
result of the trusteeship under any such other indenture,
including a statement as to how the indenture securities
will rank as compared with the securities issued under such
other indenture.
Not Applicable
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer, partner,
employee, appointee, or representative of the obligor or
of any underwriter for the obligor, identify each such
person having any such connection and state the nature of
each such connection.
Not Applicable
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the
obligor and each director, partner, and executive officer
of the obligor:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned beneficially Percent of voting
securities
represented by
amount given in
Col. C
- ------------- ------------- ------------------------- -----------------
Not Applicable
<PAGE> 352
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by each
underwriter for the obligor and each director,
partner and executive officer of each such underwriter:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially securities represented
by amount given in
Col. C
- ------------- -------------- ------------ ----------------------
Not Applicable
Item 8. Securities of the obligor owned or held by the trustee
Furnish the following information as to securities
of the obligor owned beneficially or held as
collateral security for obligations in default by
the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security amount given in
for obligations Col. C
in default
- ------------- -------------- ------------------ -----------------
Not Applicable
<PAGE> 353
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of an underwriter for the
obligor, furnish the following information
as to each class of securities of such
underwriter any of which are so owned or
held by the trustee:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security for amount given in
obligations in Col. C
default
- ------------- -------------- ------------------ -----------------
Not Applicable
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or securityholders of the obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities of
a person who, to the knowledge of the trustee (1)
owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a subsidiary,
of the obligor, furnish the following information as to
the voting securities of such person:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Precent of voting
beneficially or securites
held as collateral represented by
security amount given in
for obligations Col. C
in default
- ------------ ---------------- ------------------ -----------------
Not Applicable
<PAGE> 354
Item 11. Ownership or holdings by the trustee of any securities of a
person owning 50 percent or more of the voting securities of
the obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a
person who, to the knowledge of the trustee, owns
50 percent or more of the voting securities of the
obligor, furnish the following information as to each
class of securities of such any of which are so owned or
held by the trustee:
As of January 26, 1996
Col. A Col. B Col. C
Nature of Indebtedness Amount Outstanding Date Due
- ---------------------- ------------------ --------
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
As of January 26, 1996
Col A Col. B Col. C Col. D
Name of Owner Title of class Amount owned Percent of voting
beneficially or securities
held as collateral represented by
security for amount given in
obligations in Col. C
default
- ------------- --------------- ------------------ -----------------
Not Applicable
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
Not Applicable
<PAGE> 355
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates
of interest or participation in any other securities,
of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the
indenture, state whether there has been a default under
any such indenture or series, identify the indenture
or series affected, and explain the nature of any such
default.
Not Applicable
Item 14. Affiliations with the Underwriters
If any underwriter is an affiliate of the trustee,
describe each such affiliation.
Not Applicable
Item 15. Foreign Trustees.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not Applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement
of eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust
Company as amended to date. (See Exhibit 1A to Form
T-1, Securities and Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the Trustee
to Commence Business (Included in Exhibit I above).
*3. A copy of the Authorization of the Trustee, as
amended to date (See Exhibit 4 to Form T-1, Securities
and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the Trustee, as
amended to date (See Exhibit 4 to Form T-1, Securities
and Exchange Commission File No. 22-19146).
<PAGE> 356
5. A copy of each Indenture referred to in Item 4, if the
Obligor is in default. Not Applicable.
6. The consent of the United States institutional trustee
required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of
its supervising or examining authority.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
NOTE
In answering any item in this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor and its directors
or officers, the trustee has relied upon information furnished to it by
the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Item 2, the
answers to said Item are based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an
amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the trustee
as indicated in Item 13, the obligor is not in default under any indenture
under which the applicant is trustee.
<PAGE> 357
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, IBJ Schroder Bank & Trust Company, a corporation organized
and existing under the laws of the State of New York, has duly caused this
statement of eligibility & qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York,
and State of New York, on the 26th day of January, 1996.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
---------------------------------
Max Volmar
Vice President
<PAGE> 358
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issue of U.S. Home
Corporation, we hereby consent that reports of examinations by Federal,
State, Territorial, or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Max Volmar
----------------------------------
Max Volmar
Vice President
Dated: January 26, 1996
<PAGE> 359
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of September 30, 1995
Dollar Amounts
in Thousands
--------------
ASSETS
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin.....$ 27,302
Interest-bearing balances..............................$ 274,438
Securities: Held to Maturity............................$ 169,283
Available-for-sale..........................$ 30,605
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and
in IBFs:
Federal Funds sold.....................................$ 49,732
Securities purchased under agreements to resell........$ -0-
Loans and lease financing receivables:
Loans and leases, net of unearned income...$ 1,837,874
LESS: Allowance for loan and lease losses..$ 52,477
LESS: Allocated transfer risk reserve......$ -0-
Loans and leases, net of unearned income,
allowance, and reserve.................................$ 1,785,397
Assets held in trading accounts............................$ 114
Premises and fixed assets..................................$ 7,958
Other real estate owned....................................$ 397
Investments in unconsolidated subsidiaries and
associated companies.......................................$ -0-
Customers' liability to this bank on acceptances
outstanding................................................$ 938
Intangible assets..........................................$ -0-
Other assets...............................................$ 68,195
TOTAL ASSETS...............................................$ 2,414,359
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LIABILITIES
Deposits:
In domestic offices....................................$ 474,693
Noninterest-bearing .................$ 143,148
Interest-bearing.....................$ 331,545
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.................................$ 853,713
Noninterest-bearing .................$ 10,321
Interest-bearing.....................$ 843,392
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal Funds purchased................................$ 75,000
Securities sold under agreements to repurchase.........$ -0-
Demand notes issued to the U.S. Treasury...................$ 50,000
Trading Liabilities........................................$ 101
Other borrowed money:
a) With original maturity of one year or less..........$ 668,892
b) With original maturity of more than one year........$ 5,000
Mortgage indebtedness and obligations under
capitalized leases.........................................$ -0-
Bank's liability on acceptances executed
and outstanding............................................$ 938
Subordinated notes and debentures..........................$ -0-
Other liabilities..........................................$ 83,666
TOTAL LIABILITIES..........................................$ 2,212,003
Limited life preferred stock and related surplus...........$ -0-
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EQUITY CAPITAL
Perpetual preferred stock..................................$ -0-
Common Stock...............................................$ 29,650
Surplus....................................................$ 216,935
Undivided profits and capital reserves.....................$ (44,320)
Plus: Net unrealized gains (losses) on marketable
equity securities.................................$ (91)
Cumulative foreign currency translation adjustments........$ -0-
TOTAL EQUITY CAPITAL.......................................$ 202,356
TOTAL LIABILITIES AND EQUITY CAPITAL.......................$ 2,414,359
